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Perspectives: Employers could face more OSHA rules

OSHA Electronic Tracking

The Occupational Safety and Health Administration has been quite busy over the past few months on the rulemaking front, and it does not seem to be slowing down despite the fact that COVID-19 still sucks most of the air out of the room. Much of what is on the forefront is, however, not COVID-19 related. 

Over the past six months, OSHA managed to publish a new proposed regulation to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule, also known as the Electronic Recordkeeping Rule; initiate an enforcement National Emphasis Program addressing outdoor and indoor heat illness prevention; and launched a rulemaking for a Heat Illness Prevention Standard. 

OSHA’s E-Recordkeeping Rule has had a long and tortured history since its inception in 2016, when President Barack Obama’s OSHA enacted it. As designed, the E-Recordkeeping Rule required hundreds of thousands of workplaces to, for the first time, proactively submit injury and illness data to OSHA through a web portal. In 2019, the Trump Administration amended the rule to remove the most onerous requirement: for very large establishments with more than 250 employees to submit detailed injury information from OSHA Forms 300 and 301 Incident Reports.

Fast forward to 2022 and the return of a Democratic administration, and we are seeing President Joe Biden’s OSHA revisit many of the Trump administration’s policies. In the context of e-recordkeeping, the new administration is not content to just reverse the Trump rollbacks but seems set on over-compensating, that is, pushing the E-Recordkeeping Rule even further than when it was first issued during the Obama administration. 

Specifically, under the new proposed amended E-Recordkeeping Rule, workplaces with 20+ employees in certain high-hazard industries will continue to be required to electronically submit data only from their OSHA Form 300A Annual Summary, but now, OSHA intends to require workplaces with 100+ employees (rather than the prior 250+ employee threshold) in certain high hazard industries to annually electronically submit to OSHA the information from their full panoply of OSHA recordkeeping records: 300 logs, 301 incident reports and 300A annual summaries.

As many as tens of thousands more establishments will be covered by the proposed amended E-Recordkeeping Rule — as one of the major coverage thresholds will be 100+ employees (rather than 250+) — and the scope of the data required to be submitted is significantly greater and more invasive. 

The 300A Annual Summary data is pretty bare bones: just the number of recordable cases, total man hours worked, and the total number of cases meeting various recording criteria. Requiring submission of information from 300 logs and 301 incident reports means that OSHA will have custody of the details about individual recordable cases, with employee names, particulars about the parts of their bodies that were injured, information about their medical treatment — an entirely different look under the hood than the last five years under the E-Recordkeeping Rule.

This has huge implications for employee privacy, as well as great potential for harmful use of the data against employers by plaintiffs attorneys, insurance companies, union organizers, competitors, the media, etc. Moreover, OSHA intends to use the collected data to target its enforcement resources.

On the heat illness front, at the end of 2021, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” 

The ANPRM included more than 100 questions OSHA posed to interested stakeholders signaling a broad rule covering outdoor and indoor work settings, which likely will include provisions requiring everything from written heat illness prevention programs and engineering and administrative controls to work-rest cycles, self-pacing and paid cool-down rest breaks.

 Also expected are rigid acclimatization requirements; training for employees and supervisors; physiological, medical and exposure monitoring; and emergency response plans.

While this heat illness rulemaking plays out, likely over several years, OSHA also recently launched a heat illness prevention enforcement national emphasis program. 

The emphasis program addressed that same hazard for a number of industries, including general industry, construction, maritime and agriculture. This emphasis program is intended to augment OSHA’s current heat illness enforcement, which to date has just involved complaints, referrals and severe incident reports. As part of the NEP, OSHA will initiate programmed (pre-planned) inspections in indoor and outdoor work settings in approximately 70 high-risk industries when the National Weather Service has issued a heat warning, alert or advisory for an area. 

The NEP establishes heat priority days when the heat index is expected to be 80°F or higher, when the agency will inquire during inspections regarding the existence of any heat-related hazard prevention programs and training.

These two regulatory developments — expanding e-recordkeeping and addressing heat illness — are a clear sign that while OSHA continues to address COVID-19 in the workplace, like much of the rest of the country, the agency is also trying to move past that singular focus.

Eric Conn is chair of Conn Maciel Carey LLP’s national OSHA practice in Washington, which is organizing fee-based coalitions of employers and trade groups to prepare comments and otherwise advocate for reasonable regulations through OSHA’s active rulemaking processes.