Employer attorneys advise against submitting data not required by OSHA

A large number of employers not regulated by the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule are voluntarily submitting data to the agency, but they should refrain from doing so in the future because that information could be used against them in OSHA enforcement actions, according to attorneys representing employers.

The electronic record-keeping regulation, formally known as the Improve Tracking of Workplace Injuries and Illnesses rule, was adopted under the Obama administration. But in July, OSHA released a proposal to amend the 2017 record-keeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA forms 300 and 301. They will still be required to submit information from their Form 300A summaries of work-related injuries and illnesses, per the rule, finalized in January that is now being challenged in court by three public health organizations.

OSHA received 215,381 Form 300A submissions in 2016 — about 355,000 fewer submissions than projected in the first year — and 259,764 Form 300A submissions in 2017.

Several factors contributed to the lower-than-expected submissions, including a “less-than-smooth rollout” of the agency’s electronic portal for collecting the data and a potential security breach identified by the U.S. Department of Homeland Security that forced the portal to be shut down for a few weeks, Daniel Deacon, a Washington, D.C.-based associate in Conn Maciel Carey LLP’s OSHA and labor and employment practice groups, said during a webinar on Tuesday.

There was also confusion about the status of the regulation because of delays and “promises of change” due to the transition from the Obama administration to the Trump administration, he said. In addition, not all state OSHA plans had adopted the rule, he said.

But interestingly, a large number of establishments not regulated under the electronic record-keeping rule are submitting data, partly due to general confusion about the rule, he said. In 2017, 60,956 so-called out-of-scope submissions of Form 300A data were made, up from 52,171 in 2016.

“The number one thing (OSHA is) doing with the data is targeting enforcement resources,” said Eric Conn, founding partner of Conn Maciel in Washington and chair of the firm’s national OSHA workplace safety practice. “If you’re not required, if you have establishments that don’t meet the right number of employees or you’re in a state that hasn’t adopted the rule yet, our general advice is don’t submit until you’re legally (or) regulatorily required to, because if you do this courtesy for OSHA, the courtesy they may return is an inspection of your workplace. We were very surprised to see such a large number of employers not covered by the rule submitting data.”

In 2015, the agency implemented its severe injury reporting rule, which kept a mandate that all workplace fatalities be reported within eight hours, but added a new requirement that employers report the inpatient hospitalization of a single employee — rather than three or more employees as previously required — as well as all amputations and loss of an eye within 24 hours. 

Reportable hospitalizations under the rule rose to 9,135 in 2018, up from the 7,638 hospitalizations reported in 2015, according to federal OSHA statistics. About 27% of the hospitalizations reported in 2018 resulted in inspections.

Last year, 2,922 amputations were reported — compared with 2,646 in 2015 — with 48% of the 2018 amputations resulting in OSHA inspections.

But upward trends in the severe injury and illness reports do not indicate an increase in injuries or fatalities, Mr. Conn said.

“My guess is you’re seeing these numbers increase year after year as people become more and more familiar with this new rule,” he said. “You’ve operated for decades on reporting a hospitalization of three or more employees and nothing special to do with amputations. It’s taken a few years for the regulated community to get familiar with this rule, so I wouldn’t be surprised to see these numbers continue to increase even as workplaces may become even more and more safe.”

But OSHA had no assurance employers reported work-related inpatient hospitalizations, amputations and losses of an eye, with estimates showing employers do not report 50% or more of severe injuries, so the agency must take steps to prevent underreporting of fatalities and injuries and ensure employers correctly identified hazards, according to a report released in September by the U.S. Department of Labor’s Office of Inspector General.

Field inspections are mandatory in certain situations, including all fatalities, after receiving a severe injury report. But in some cases, OSHA will just send a rapid response investigation letter requesting that the employer conduct a root cause accident investigation and document findings and corrective actions, Conn Maciel attorneys noted.

But a common mistake made by employers is to place all the blame on the employee in these rapid response investigation reports because OSHA has been very clear that it does not view such reports as thorough investigations, said Lindsay DiSalvo, a Washington-based associate in Conn Maciel’s OSHA and labor and employment practice groups.

“Do not list employee misconduct as the first or sole cause of injury,” she said. “There should be other causes that are listed in the report. OSHA generally frowns on just having the employee misconduct as the sole cause of injury and is likely to take a harder look at a report that might just point out the employee misconduct as a sole cause of injury.”

Employers should list at least one corrective action in these reports because OSHA wants to see that employers have taken steps to try to prevent serious injuries or illnesses from recurring, she said.

Receiving a rapid response investigation letter is “a great sign” because it means that OSHA does not intend to inspect the workplace, Mr. Conn said.

“Your goal is to keep them from inspecting, so you give them enough that they will close the file without coming on-site to conduct an inspection, but not so much that you’ve set yourself up for violations if they do decide to inspect,” he said.