On Wednesday, OSHA announced a further two-week delay in the deadline for employers to submit their 2016 injury and illness data electronically to the agency. The new deadline will be December 15, 2017. That will mark the first time that employers are required to routinely submit such data under a new rule issued during the Obama administration (to “Improve Tracking of Workplace Injuries and Illnesses”). Here’s what employers need to know…

1. Who needs to submit in December?

The December 15th deadline applies to:

  1. Establishments with 250 or more employees at any time during the previous calendar year that are required to keep OSHA injury and illness records.
  2. Establishments with 20 – 249 employees at any time during the previous calendar year that are in industries listed in the rule.

Note: Smaller employers should check the full list of industries because it is long and comprehensive (see the full list in our recent post: “Does your business have to give OSHA injury data by December 15?”). The list includes employers (with certain NAICS codes) in a wide range of major industries, including:

  • Manufacturing
  • Agriculture
  • Retail
  • Construction
  • Medical facilities
  • Warehousing and storage
  • Transportation
  • Utilities
  • Auto parts
  • Waste collection
  • Entertainment
  • And others!

Exceptions for certain states: According to an OSHA announcement last week, private establishments in California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming do not yet have to comply with this filing deadline because these are State Plan states that have not yet adopted the electronic submission requirement. Likewise, “state and local government establishments in Illinois, Maine, New Jersey, and New York are not currently required to submit their data through the ITA.”

2. What do I need to submit in December?

For this first submission under the new rule, employers will have to submit only their 2016 OSHA 300A “Summary of Work-Related Injuries and Illnesses.” This form does not list specific injuries, employee names, or incident details. It merely summarizes the number of injury cases (broken down by deaths, cases with days away, cases with job transfer/restriction, and other recordables), the total numbers of days away and days transferred/restricted, and total number of injuries and illnesses by broad category (injuries, skin disorders, respiratory conditions, poisonings, hearing loss, and all other illnesses).

3. Where and how do I submit?

You must submit electronically through OSHA’s new online Injury Tracking Application. You can submit data (1) manually via web form, (2) by uploading a CSV file with one or multiple establishments, or (3) by connecting your automated recordkeeping system with OSHA’s system through an API (application programming interface).

4. Do I need to keep any new records?

No. Companies were already required to maintain – and show OSHA upon request – the 300, 301, and 300A forms. The only difference is that some data on some of these forms need not be submitted (see #6 below).

5. What counts as an establishment?

The new rule does not change the definition of an “establishment.” Generally, “[a]n establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.” See 29 C.F.R. 1904.46 or ask your safety and health counsel for more detail.

6. What records will I have to submit in the future?

After this initial submission in December, larger employers (those with 250 or more employees) will have to submit not only the summary 300A form, but also the more detailed Form 300 (the detailed “Log of Work-Related Injuries and Illnesses”) and Forms 301 (the “Injury and Illness Incident Report” describing each injury or illness in detail). (Note the exceptions in #3 above for data that does not need to be submitted.)

Note that not all data on the 300 and 301 forms will have to be submitted. There are two significant exceptions:

  1. The employee name on the OSHA Form 300 (column B) can be omitted. (29 C.F.R. § 1904.41(b)(2)(i))
  2. Several personal fields on OSHA Form 301 can be left out: Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), facility name and address if treatment was given away from the worksite (field 7). (29 C.F.R. § 1904.41(b)(2)(ii))

Smaller employers (20-249 employees) in listed industries will still only have to submit the summary 300A form.

7. What are the future deadlines in 2018 and beyond?

  • July 1, 2018: 2017 data will be due
  • March 2, 2019: 2018 data is due
  • Thereafter, March 2nd will be the annual deadline for submitting the prior calendar year’s data.

8. Is OSHA still re-thinking any part of the rule?

Maybe. It seems that OSHA is at least considering how much data submitted will be publicly available online. In June, OSHA said that delaying the first submission until December would “provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation.” Secretary of Labor Alexander Acosta recently touched on the issue in testimony before Congress, saying “We are balancing the issues of privacy – because it was asking for some information that was very detailed and that identified individuals – with the needs (sic) to get information so that we can engage in appropriate and targeted enforcement.”

It’s also possible that OSHA is doing a deeper review. In its notice delaying the rule by another two weeks, OSHA said today that it is “currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.” The “other provisions” of the rule might include whether and what information must be submitted electronically, as well as two elements that are already in effect: the controversial provisions limiting drug testing and safety incentive programs.

The ambiguity of these announcements is not surprising. The nominee to head up OSHA, Scott Mugno, still hasn’t received a confirmation hearing or vote, and it’s reasonable to assume that OSHA will try to avoid making any major policy reversals or decisions until an assistant secretary is in place.

9. What are employer concerns with the rule?

In addition to the new administrative burden of submitting this data (and added risk of violations for failure to submit on time or fully), many employers have raised concerns about OSHA’s explicit intent to make the injury and illness data public via the Internet. In explaining why it adopted the rule on its web site (to this day), the primary reason OSHA gives for the electronic submissions and publicity is that “making injury information publicly available will ‘nudge’ employers to focus on safety.” Many employers interpreted this to be an effort to “shame” companies based on their injury and illness records.

In addition, many are concerned about the security and privacy of information submitted, especially in light of a reported data breach alert in the OSHA system in August. Finally, employers worry that the data posted online will lack significant context, giving people the wrong impression about their company safety records and programs. For instance, viewers may not understand the extensive efforts undertaken by a company to achieve safety, the circumstances that caused a particular incident (such as whether an injured employee was intoxicated), or how a company’s record compares with others.

10. What if I have more questions?

OSHA’s homepage for the Final Rule has explanatory materials, including a link to the rule itself, which contains Q&A sections.

For questions or concerns about how to comply, please contact your Husch Blackwell Safety and Health attorney or Avi Meyerstein.

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