Recordkeeping, Regulatory Developments

OSHA Alert! The Revised Injury Tracking Rule Has Cleared the OMB

OSHA’s proposed revisions to the 2016 final rule to Improve the Tracking of Workplace Injuries and Illnesses have cleared the Office of Management and Budget, meaning that a Notice of Proposed Rulemaking is likely to be published in the Federal Register soon.

OSHA released a prepublication copy of the rule on July 26. As expected, the proposal seeks to remove the requirement for establishments with 250 or more workers to electronically submit data from the OSHA 300 Log of Work-Related Injuries and Illnesses and OSHA 301 Injury and Illness Incident Report, while retaining the requirement that covered establishments submit data from the 300A Annual Summary of Work-Related Injuries and Illnesses. OSHA announced its intention to make this revision in the Spring 2018 regulatory agenda. Although the initial deadline for the submission of calendar year 2017 Form 300 and 301 data was July 1, 2018, OSHA is not enforcing this requirement while rulemaking is ongoing and has not accepted Form 300 or 301 data.

OSHA’s primary rationale for removing the Form 300 and 301 reporting requirement was employee privacy concerns, as well as the time and cost of effectively using the data, which the agency characterizes as having “uncertain enforcement benefits.”

In the proposal, OSHA is also seeking comment on whether to add a requirement for employers subject to electronic recordkeeping requirements to include their Employer Identification Number (EIN) in these submissions. OSHA believes the inclusion of the EIN would permit easier cross-referencing with data collection performed by the Bureau of Labor Statistics (BLS) and potentially avoid duplicative reporting.

Absent from the proposal, however, are any revisions to the employee involvement and antiretaliation provisions at 29 CFR 1904.35 and 1904.36. Those provisions, which require employers to have reasonable procedures for employees to report work-related injuries and illnesses and prohibit employers from disciplining or retaliating in any way against employees for reporting injuries, have been interpreted by OSHA to limit certain kinds of post-accident drug testing policies, safety incentive programs, and disciplinary policies. OSHA has not proposed to change these provisions in this rulemaking.

The preproposal copy of the rule is available at

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