October 13, 2015

OSHA Awaits Budget Office Go-Ahead To Issue Electronic Recordkeeping Rule

OSHA took a key step forward in its regulatory plan to require larger companies to electronically report workplace injuries and illnesses, with the data later being posted to an online database, by sending the rule for White House review — a clear signal OSHA fully intends to issue the rule while time remains in the Obama administration.

Agency officials had earlier projected finalizing the rule in September; depending on the length of review by the Office of Management and Budget (OMB), regulators might not lag far behind their goal. But OSHA chief David Michaels told Inside OSHA Online after a Capitol Hill hearing Wednesday (Oct. 7) that “one can’t predict” when the rule might actually come out.

Litigation is almost certain over the rule once OSHA promulgates it, with industry saying it holds the potential to tarnish businesses based solely on incident reports, which they are already legally bound to record, by disseminating the information to the public when there has not necessarily been a safety violation. Industry says the agency lacks the legal authority to make the electronic records public.

Business advocates also say OSHA lacks the resources to properly review the reports and scrub them of personally identifying information before posting them to the web, which they see as a monumental burden on the agency. They compare the planned database to healthcare.gov, the roll-out of which was peppered with problems even though the Health and Human Services Department had far more technical help than OSHA could muster.

Another criticism is that the rule could discourage workers from reporting injuries and illnesses for fear of backlash, and OSHA plans to add language to CFR part 1904.35 to clarify an employee’s right to report injury and illnesses to their employer without fear of retaliation.

OMB’s Office of Information and Regulatory Affairs received the final rule Monday (Oct. 5); that agency by convention generally has 90 days to review the package with a possible extension of 30 days. OSHA rules under the Obama administration, however, have been known to sail past those deadlines, and Michaels declined to project a ballpark date.

OSHA argues the rule will make a major difference in injury and illness data collection, furnishing the agency with a much more efficient means of targeting workplace hazards. “An updated and modernized reporting system would enable a more efficient and timely collection of data, and would improve the accuracy and availability of the relevant records and statistics,” OSHA says in the regulatory agenda.

It is unclear what revisions OSHA may have made after hearing stakeholder and public feedback on the proposed rule prior to sending it to OMB.

The earlier issued proposed rule would:

  • Require establishments that are required to keep injury and illness records under Part 1904, and had 250 or more employees in the previous calendar year, to electronically submit information from those records quarterly.
  • Require employers falling under the recordkeeping rule that had 20 or more employees in the previous calendar year, and are in certain designated industries, to electronically submit the information from the OSHA annual summary form (Form 300A) on an annual basis. The second submission requirement would replace OSHA’s annual illness and injury survey, authorized by current regulations.

Require all employers who receive notification from OSHA to electronically submit specified information from their Part 1904 injury and illness records. — Christopher Cole ()


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