United States: Cal/OSHA Emergency Regulation On Injury And Illness Recording And Recordkeeping Will Require Certain Employer Action By December 31, 2018

Recently, Cal/OSHA published its Proposed Emergency Regulatory Action on Recording and Reporting of Occupational Injuries and Illnesses, as required by Assembly Bill 2334, which was signed into law last month. The new law, which takes effect on January 1, 2019, amends state occupational safety and health law regarding injury and illness recordkeeping requirements. Under the emergency regulations, certain employers must submit their Cal/OSHA 300 logs by December 31, 2018.

What Does AB 2334 Require?

The new law focuses on two health and safety law components:

First, it establishes a rule similar to the "Volks" Rule in California. The "Volks" Rule (also known as the federal "Clarification of Employer's Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness") made recordkeeping requirements a continuing obligation for employers and allows Cal/OSHA to issue citations to employers for failing to record work-related injuries and illnesses for a five-year retention period. The original recordkeeping statute of limitations was six months. The federal government rescinded the "Volks" Rule in 2017 through the use of the Congressional Review Act. Under that Act, OSHA is prevented from ever issuing a rule that is substantially the same as the rescinded version.

California is attempting to circumvent this concept through Assembly Bill 2334, which by its terms allows Cal/OSHA to issue a recordkeeping citation for errors to Cal/OSHA logs for up to five years. Under the Bill, the agency has six months to issue a citation from the time an employer corrects an issue, Cal/OSHA discovers a recordkeeping violation, or where the requirement no longer exists because of changes in regulation.

Second, the law focuses on a new electronic record keeping component. The federal government developed an electronic recordkeeping requirement in 2016. Assembly Bill 2334 states if the federal government stops enforcing the electronic record keeping rule, California will form an advisory committee on how to enforce the rule. Cal/OSHA recently published a notice of proposed emergency regulatory action focused on one specific piece of the electronic recordkeeping requirement – submission of the OSHA Form 300A. The action allows Cal/OSHA to propose a regulation that requires employers in California to submit their 300A forms. The deadline to electronically file these records is in two months on December 31, 2018.

Proposed Emergency Regulation

The proposed emergency regulation has a five-day comment period; it will then be submitted to the Office of Administrative Law. After the emergency regulation is published, Cal/OSHA will submit a separate permanent regulation. The permanent regulation will likely read the same as the emergency regulation and employers will have 180 days to comment. Employers, however, will have to submit their logs by December 31, 2018, as stated in the proposed emergency regulation, even though it is not a permanent regulation.

The proposed emergency regulation identifies two categories of employers that must submit their Cal/OSHA 300A forms by December 31, 2018: (1) Employers with over 250 employees per establishment, and (2) Employers with between 20-250 employees per establishment that conduct work in one of the designated industries listed below:

  • Agriculture, forestry, fishing and hunting.
  • Utilities.
  • Construction.
  • Manufacturing.
  • Wholesale trade.
  • Automotive parts, accessories, and tire stores.
  • Furniture stores.
  • Home furnishings stores.
  • Building material and supplies dealers.
  • Lawn and garden equipment and supplies stores.
  • Grocery stores.
  • Specialty food stores.
  • Department stores.
  • Other general merchandise stores.
  • Used merchandise stores.
  • Vending machine operators.
  • Direct selling establishments.
  • Scheduled air transportation.
  • General freight trucking.
  • Specialized freight trucking.
  • Urban transit systems.
  • Interurban and rural bus transportation.
  • Taxi and limousine service.
  • School and employee bus transportation.
  • Charter bus industry.
  • Other transit and ground passenger transportation.
  • Scenic and sightseeing transportation, land.
  • Support activities for air, rail, water, or road transportation.
  • Other support activities for transportation.
  • Postal service.
  • Couriers and express delivery services.
  • Local messengers and local delivery.
  • Warehousing and storage.
  • Cable and other subscription programming.
  • Lessors of real estate.
  • Automotive equipment rental and leasing.
  • Consumer goods rental.
  • General rental centers.
  • Services to buildings and dwellings.
  • Waste collection.
  • Waste treatment and disposal.
  • Remediation and other waste management services.
  • Other ambulatory health care services.
  • General medical and surgical hospitals.
  • Psychiatric and substance abuse hospitals.
  • Specialty (except psychiatric and substance abuse) hospitals.
  • Nursing care facilities.
  • Residential mental retardation, mental health and substance abuse facilities.
  • Community care facilities for the elderly.
  • Other residential care facilities.
  • Community food and housing, and emergency and other relief services.
  • Vocational rehabilitation services.
  • Performing arts companies.
  • Spectator sports.
  • Museums, historical sites, and similar institutions.
  • Amusement parks and arcades.
  • Gambling industries.
  • Traveler accommodation.
  • RV (recreational vehicle) parks and recreational camps.
  • Rooming and boarding houses.
  • Special food services.
  • Commercial and industrial machinery and equipment (except automotive and electronic) repair and maintenance.
  • Dry-cleaning and laundry services.

Other employers will need to submit Cal/OSHA 300A forms electronically by request of Cal/OSHA.

Next Steps

Employers may want to consider consulting with counsel and conducting audits of their recordkeeping practices to ensure accuracy. Over the coming months, with these changes, we anticipate Cal/OSHA will be very aggressive at scrutinizing employers' recordkeeping logs and we will likely see a rise in recordkeeping violations. California employers should remain diligent with respect to accurately recording workplace injuries and illnesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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