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Employers should comply with the U.S. Occupational Safety and Health Administration’s narrowed electronic record-keeping rule even though confusion and uncertainty reign over its applicability and longevity, experts say.
Complicating matters, the application of the rule may not be consistent across the United States because some states still have not adopted it, while others may be tempted to stick with the original rule, experts say.
Meanwhile, public interest groups and six U.S. states have filed lawsuits to preserve the original rule.
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 2018, 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 are still required to submit information from their Form 300A summaries of work-related injuries and illnesses, per the rule, finalized in January, with the forms due March 2.
“Federally, I think the right move is just to start getting those 300As in and just accept that’s the way it’s going to be,” said Jason Mills, a Los Angeles-based partner at Morgan, Lewis & Bockius LLP who represents employers in OSHA citation challenges. “It just seems like a burdensome and unnecessary requirement.”
However, some employer representatives are warning against providing OSHA with more injury and illness information than it is entitled to, because such information can be used in citations. In 2017, 60,956 out-of-scope submissions, meaning they were not required under the rule, of Form 300A data were made, up from 52,171 in 2016.
“I’m of the approach if it’s not actually required, don’t volunteer it because you don’t have control over how that information is used,” said Fiona Ong, a partner in the employment practices division of Shawe Rosenthal LLP in Baltimore.
Contributing to employer confusion over compliance, some OSHA state plans have not adopted the rule, experts say. A state plan is an OSHA-approved safety and health program that enforces its own standards, which must be at least as effective as federal OSHA, but may have different or additional requirements. Twenty-six states and two U.S. territories have state plans.
The Occupational Safety and Health Act does not allow the agency to compel employers in state-plan states to comply with a regulation that has not been adopted in their states or issue citations against such employers, so the remedy would be for the agency to revoke the state-plan status, said Daniel Deacon, a Washington-based associate in Conn Maciel Carey LLP’s OSHA and labor and employment practice groups. The agency has occasionally threatened to, but has rarely invoked that authority, although it did in North Carolina after a September 1991 fire at a chicken processing plant resulted in the deaths of 25 workers.
Eight state plans had not adopted the rule by the time OSHA issued a press release in April 2018 informing employers in those states that they were expected to comply with the rule. In response, Maryland informed its employers that they did not have to comply with the regulation until it was adopted by the state.
Other state plans such as California were slow to adopt the regulation, but the California Division of Occupational Safety and Health will conduct an advisory committee meeting in May to “evaluate how to implement the changes necessary to protect the goals” of the original rule, according to a notice on the agency’s website.
“It will not surprise me if California comes up with its own system where it says you have to submit everything that the original federal rule was going to require,” Mr. Mills said.
Some state plans that have adopted the original rule might not be inclined to adopt the revised rule because they are allowed to have regulations more stringent than OSHA, he said. “The state plans are probably going to see this as an opportunity to be a little more aggressive.”
But Larry Stine, Atlanta-based senior principal at Wimberly, Lawson, Steckel, Schneider & Stine P.C., expects states that had adopted the original rule to adopt the revised rule, meaning employers in those state plans would only have to file the 300A forms, because “most state plans tend to follow the federal rules pretty closely.” Maryland now plans to adopt the revised rule, according to a spokeswoman for the Maryland Department of Labor, Licensing and Regulation.
After OSHA issued its final revised rule in January, Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists filed a lawsuit in the U.S. District Court for the District of Columbia accusing the agency of violating the Administrative Procedure Act and asking the court to vacate the regulation.
“If the plaintiffs in the lawsuit are successful in stating that this new final rule should be overturned because it’s arbitrary and capricious … the electronic recording requirement for 300 and 301 would go into effect,” and employers would have to start complying with that rule, Ms. Ong said.
Separately, Illinois, Maryland, Massachusetts, Minnesota, New Jersey and New York challenged the “illegal and unjustified attempt to roll back (the regulation’s) requirements for the public reporting of workplace injuries and illnesses” in a lawsuit filed in March in the same court.
Meanwhile, a stay issued in a lawsuit filed in Oklahoma by employer groups challenging the original rule has been lifted.
The decision of an administrative law judge of the Occupational Safety and Health Review Commission to strike down two defenses offered by the U.S. Postal Service to a citation issued by the U.S. Occupational Safety and Health Administration preserves the agency’s authority under its electronic record-keeping rule.