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Electronic injury, illness reporting still uncertain despite new compliance date

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Employers now have a target date for electronically reporting injuries and illnesses to the U.S. Occupational Safety and Health Administration that they should work to comply with, but that doesn’t mean the date will stick, according to experts. 

The electronic reporting component of the agency’s Improve Tracking of Workplace Injuries and Illnesses, aka electronic record-keeping rule, was scheduled to take effect on July 1, but OSHA last week proposed delaying the compliance date for employers to electronically report injuries and illnesses to Dec. 1. 

The regulation requires employers to electronically submit data they already maintain on their onsite OSHA 300 injury and illness forms, with OSHA’s stated intention to make that information publicly available. 

“They just don’t have the resources right now to be able to put all that into place,” said Edwin Foulke, an Atlanta-based partner at Fisher & Phillips L.L.P. and a former OSHA assistant secretary of labor. “To me, it seemed like it was a stretch anyway to require all this. The (Occupational Safety and Health) Act talks about recordkeeping and collecting data, but it never envisioned such a broad sweeping thing. I just don’t think the agency is equipped to handle all the data they would get from a technical standpoint.” 

The regulation, which applies to establishments with 250 or more employees and to establishments with less than 250 employees but 20 or more in certain high-risk industries, also requires employers to establish reasonable procedures for reporting employee injuries and illnesses and bars employers from retaliating against employees for reporting injuries or illnesses. 

However, the agency also said it plans to issue a separate proposal to reconsider, revise or remove other provisions of the agency’s electronic record-keeping rule, raising questions about whether the rule’s public reporting or anti-retaliation provisions that employers have vociferously objected to will ever be enforced or if the agency will launch a rule-making process to reverse those provisions.  

“It is possible that the agency will withdraw the rule, modify it, issue another delay or move forward by providing instructions for the submission of electronic data,” Brad Hiles, a St. Louis-based attorney with Husch Blackwell L.L.P., said in a blog post. 

The agency still does not have an assistant secretary of labor of occupational safety and health, but Mr. Foulke said he hopes a nomination will happen by mid-July. That person will make decisions on whether to require the electronic compilation and publication of the data or try to reverse that provision of the rule, he said. 

“My guess is that, come Dec. 1, there’s going to be a permanent hold on it,” Mr. Foulke said. 

But employers must plan to comply in the meantime, he said

“Employers need to make sure the logs are right,” Mr. Foulke said. “They should be making sure that all that data is in place and correct and available. Assuming that come Dec. 1 (OSHA) decides that they’re not going to change that, (employers) will be able to put that information quickly into the system.”

Even though these injury and illness rates are considered lagging indicators, they are still useful data that employers should fully use to improve their safety and health programs, including performing an accident investigation or root cause analysis on recorded incidents, he said. 

“I think 300 logs are an excellent tool because they can help you eliminate hazards,” Mr. Foulke said. 

Last week, a judge overseeing a legal challenge to the electronic record-keeping regulation in the U.S. District Court in Oklahoma City filed in January by the National Association of Home Builders of the United States and the U.S. Chamber of Commerce, among other organizations, denied intervention motions filed by two unions and public health advocacy groups because the groups failed to meet the legal burden to show that the government will not adequately represent their interests. 

“We haven’t decided whether to appeal,” Michael Wright, director of health, safety and environment for the United Steelworkers union in Pittsburgh, said in an email. “However, it’s important to note that our petition was dismissed ‘without prejudice’ and with a pretty clear indication that our intervention would be allowed if the administration backs away from defending the rule.”