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Employers hope OSHA electronic records deadline delay leads to changes

Posted On: Nov. 29, 2017 6:39 AM CST

The U.S. Occupational Safety and Health Administration’s decision to extend the deadline once again for employers to electronically submit injury and illness data surprised no one, but stakeholders are hoping this means the agency will either significantly revamp the rule or at least provide additional clarity for employers.

OSHA extended the deadline for employers to electronically submit injury and illness data to Dec. 15 under the Improve Tracking of Workplace Injuries and Illnesses rule, which requires certain employers to electronically submit injury and illness data they already are required to record via their on-site OSHA injury and illness forms. Establishments with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit information on their injuries and illnesses.

The electronic reporting deadline was set for Dec. 1 after being postponed multiple times, but the agency decided to implement another two-week delay to give affected employers additional time to become familiar with the new electronic reporting system launched on Aug. 1, according to a U.S. Department of Labor statement issued last week.

“Employers should still work to familiarize themselves with the reporting system and be ready to comply by the new deadline — although I would not be surprised (again) if OSHA delayed further,” Taylor White, a Dallas-based associate in the labor and employment practice of Gardere Wynne Sewell L.L.P., said in an email.

OSHA is currently reviewing the other provisions of its final rule and intends to publish a notice of proposed rule-making to reconsider, revise or remove portions of that rule in 2018, according to the statement.

Employers and their representatives hope this means the agency could revisit some aspects of the regulation, including its language on employee incentive programs, which have been the subject of some of the handful of citations issued under the anti-retaliation provisions to date even though they are not directly prohibited. In addition, the rule’s preamble features language that employers argue discourages them from mandating post-accident drug testing, even in situations where such testing may be warranted and with the United States in the midst of an opioid epidemic.

“There hasn’t been a whole lot of enforcement on those issues, but I think it’s confusing when a rule comes out that says one thing and then we just see delay and lack of enforcement on some of the provisions,” said Punam Kaji, a Dallas-based attorney in the labor and employment and OSHA practices of Haynes and Boone L.L.P. “But we can’t possibly advise our clients not to consider the rule. It’s law. They’re forced to prepare to comply and change their safety incentive programs if they have one. It’s been tough for employers.”

Employers also objected to the agency’s intent to publicly publish the injury and illness data it received via these mandatory reports, which they say is troubling because of the ambiguity of information featured in these reports and the potential for misuse of the information.

Robert Cartwright Jr., Exton, Pennsylvania-based safety and health manager at Bridgestone Retail Operations L.L.C. and incoming president of the Risk & Insurance Management Society Inc., expressed three major concerns about the regulation: some companies may not have the resources to comply, the lack of context surrounding the incident reports, and the possibility of inaccurate information being published.

“One of the most onerous issues with the whole record-keeping is the validity of the information as it’s going in,” he said. “They’re trying to have reports that show a fair and balanced assessment of a workplace environment, but without having the context for each of these incidents … it may have the tendency to influence false conclusions about an employer.”

“If you have any errors in the data entry, it only creates another backlog of false information,” Mr. Cartwright added. “There’s too much room for error.”

Also concerning is that many companies have not previously been required to submit this data, and training and education will be required to ensure compliance, he said.

“There’s going to have to be a learning curve to understand exactly what they should be looking at,” Mr. Cartwright said.

Stakeholders remain concerned that OSHA will inadvertently release employees’ personal information when they create a public database for employer injury and illness reports. David Michaels, the previous assistant secretary of Labor for Occupational Safety and Health, pledged the agency would scrub the public reports of employees’ personally identifiable information, but stakeholders expressed doubts about OSHA’s ability to do so. That concern has grown in recent months since the agency suspended its injury tracking application shortly after its launch in August due to a potential cyber breach.

“We have been advising clients just to be careful of what they’re redacting and double check that, because there could be more issues on that point than noncompliance,” Ms. Kaji said. “We want to make we aren’t putting personnel information out there that we don’t want to. That was already a red flag for us, and it was validated by the potential hack. It’s really hard right now to trust the system when we’ve seen so many hacks of major companies that presumably have good security checks.”

“The volume of that (information) is going to be a critical piece,” Mr. Cartwright said. “Does OSHA have enough personnel to handle the volume of information that they’re requesting?”

“I think the intent is very good,” he added. “We need to have an electronic source to capture that information. I do credit OSHA for pushing things back, because if you’re going to do it, you ought to do it right.”