OSHA Narrows Obama-Era E-Filing of Injury/Illness Data Reporting Requirements

On January 25, 2019, OSHA published a new reporting rule partially rescinding Obama-era regulations that required many employers to annually e-file detailed workplace injury records. Certain employers are still required to electronically submit their OSHA 300A Summary to OSHA through OSHA's Injury Tracking Application (ITA) online portal by March 2. But the new rule eliminates employers' obligation to electronically submit the more detailed OSHA 300 Logs and 301 Incident Reports. Nevertheless, employers must still:

1. certify their OSHA 300 Logs and their 300A Annual Summary of workplace injuries and illnesses; and
2. internally post their OSHA 300A Summary from February 1 to April 30.

OSHA's Basic Recordkeeping Requirements

OSHA's general recordkeeping and reporting standard, 29 CFR part 1904, requires most employers with more than 10 employees to maintain:

1. a list of each recordable workplace injury (OSHA 300 Log);
2. a detailed report for each recordable workplace injury (OSHA 301 Incident Report); and
3. a numerical summary of all workplace injuries for a given year (OSHA 300A Summary).

Prior to the Obama Administration, these reports only needed to be provided to OSHA upon request. But, under an Obama-era revision to OSHA's reporting standard, establishments with 250 or more employees, and establishments with 20-249 employers in certain industries, were required to annually submit all OSHA 300, 301, and 300A reports for the prior calendar year. OSHA would then have published employer injury data on a publicly-accessible database.

These enhanced reporting obligations were strongly criticized, primarily because information in OSHA 300s and 301s may include injured workers' sensitive and private personal information that might be publicly available (or accidentally disclosed) under the Freedom of Information Act, and because of concern that third parties would use the submitted information for purposes the recordkeeping requirements were not intended to support. As a result, under the Trump Administration, federal OSHA never enforced the Obama-era regulations with regard to OSHA 300s and 301s. Now the requirement has been removed altogether from federal OSHA regulations.

The New Rule

The current OSHA rule removes employer obligations to electronically submit OSHA 300s and 301s annually. However, employer establishments with more than 250 employees, and establishments with 25-249 employees in certain industries, are still required to electronically submit OSHA 300A logs by March 2 of the subsequent calendar year (for example, an establishment's OSHA 300A Summary for 2018 should be submitted by March 2, 2019). Employers must also include their Employer Identification Number (EIN) with their OSHA 300A Summary submission. Employers previously required to maintain OSHA 300 Logs and 301 Incident Reports must still do so.

What About State-Plan States?

Federal OSHA has taken the position that the obligation to electronically submit OSHA 300A Summaries with the Employer Identification Number extends even to "state plan states." State-plan states are certified by OSHA to promulgate and administer their own occupational safety and health standards so long as the state regulations are at least as stringent as federal requirements. Approximately half of U.S. jurisdictions are subject to state-plans. Some state-plans incorporate by reference federal OSHA regulations, but others have their own regulatory frameworks. Where state-plan states have adopted their own regulations, those regulations apply instead of federal OSHA regulations.

However, federal law requires that state plans "consult with and obtain approval" for state regulations that deviate from certain of federal OSHA's recordkeeping and reporting requirements "because of the unique nature of the national recordkeeping program." In a 2018 press release, federal OSHA announced that it had

determined that Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.

OSHA's position – that employers in state-plan states must abide by federal OSHA record submission obligations regardless of what the state plan says – is an interpretation that has not yet been tested. Whether this position will prevail in litigation, and whether federal OSHA will enforce this provision against state-plan employers, is an open question.

Employers in state-plan states that have incorporated federal OSHA rules or that have adopted state-plan rules requiring submission of OSHA 300A Summaries should electronically submit their OSHA 300A Summaries by March 2.

Employers in state-plan states that have not adopted electronic submission rules should consult with experienced counsel regarding their obligations. For example, the Washington Department of Labor & Industries provides the following statement:

The requirement [to e-file OSHA forms] does not apply to Washington employers. That is because Washington State has not yet adopted the new electronic reporting requirement. If you are an employer in the state of Washington, you do not have to provide this information to OSHA until Washington adopts the same requirement in our state.

Rulemaking activity is underway to adopt the electronic reporting requirement in Washington State in 2018. [no final rule has been adopted.]

In the meantime, continue to keep your OSHA 300 Log as before.

Employers in state-plan states that have enacted and not rescinded the Obama-era electronic submission rules should monitor their state's state-plan developments in light of the new OSHA rule and consult with legal counsel regarding appropriate compliance with recordkeeping obligations.