United States: A Construction Employer's Guide To OSHA's Electronic Recordkeeping Requirements

The Occupational Safety and Health Administration’s electronic recordkeeping regulation has had a tortured existence since its introduction in May 2016. The relatively short regulation was accompanied by a 200-plus-page preamble that attempted to explain what OSHA meant by the regulation, but appeared to add requirements not specifically mentioned in the actual regulation (i.e., disdain for post-accident drug testing, incentive programs and disciplinary actions). 

Subsequently, OSHA has since issued four memorandums attempting to further explain what the 200-plus-page preamble apparently did not, including a softening of the disdain for drug testing and incentive programs. The regulation and its progeny have also spawned numerous lawsuits by groups on both sides of the political spectrum. Most recently, OSHA has issued a new regulation amending the May 2016 regulation that has now reduced the electronic reporting requirement from its initial mandate for OSHA 300 Logs, Forms 301 and the 300A annual summary to a more manageable requirement of just the annual summary. 

Current State of the Law

As of March 2, 2019, all employers with an establishment of at least 250 employees are required to electronically submit the annual summary (the 300A form). Additionally, employers with 20 to 249 employees, in a high-hazard industry, are also required to submit the form 300A as of March 2, 2019. Construction is listed broadly in the list of high-hazard industries. The 300A is submitted electronically via OSHA’s Injury Tracking Application (ITA). A technical information FAQ answers questions on how to establish an account and submit the information.

The long-standing requirement for employers to post the form 300A still stands, and that should have been posted on Feb. 1 and remained posted until April 30. The other prior recordkeeping requirements for entering certain work-related injuries and illnesses on the 300 Log and completing the OSHA Form 301 have also remained part of the law. Finally, the anti-retaliation provisions of the regulation have also survived the most recent amendment, but may not be enforced as broadly as first indicated.

How Did it Get Here?

The OSHA recordkeeping regulation has been around a long time, but, as mentioned above, OSHA issued a final rule that amended that long-standing regulation in an attempt to modernize the data collection by requiring electronic submission of the records. The amended rule did not change the types of records an employer must create and maintain, but sought to require the electronic submission to OSHA of the 300 Log, the accompanying Form 301s and the Form 300A for covered employers. It also stated OSHA’s intention to publish this data on its website. There was also the addition of the anti-retaliation provisions, which, in simple form, required employers to have a reasonable procedure for employees to report work-related injuries and illnesses, to not retaliate against employees for reporting work-related injuries and illnesses, and to inform employees of their right to report work-related injuries and illnesses without retaliation. This relatively innocuous and short amendment was accompanied by more than 200 pages of explanation of OSHA’s intent as to the regulation, especially what OSHA would consider to be retaliatory acts, and included strong language seeming to prohibit post-accident drug testing, safety incentive plans and discipline if the discipline was deemed to be in retaliation for reporting the work-related injury or illness. 

Next, groups and trade associations aligned with employers filed lawsuits in federal court to challenge the new regulation claiming there were privacy concerns with submitting the information electronically and posting it on OSHA’s website, as well as numerous complaints regarding the breadth of the anti-retaliation provisions. Those lawsuits were put on hold when the Trump administration informed the court that it was reviewing the regulation and may be making significant changes to it. In the meantime, OSHA was delayed in getting its ITA portal up to speed on its website, and an early version promptly crashed. OSHA then decided that it would accept only the annual summary, not the 300 Log or the Forms 301. That prompted lawsuits from Public Citizen, a nonprofit consumer rights advocacy group, arguing that OSHA had engaged in inappropriate rule-making by its action and demanding that OSHA collect the 300 Logs and Form 301. OSHA also decided not to publish the data on its website, and that prompted another lawsuit by Public Citizen demanding the release of the data.

Then in January 2019, OSHA issued its final rule that eliminated the requirement to submit the OSHA 300 Log and Form 301, and required only the electronic submission of the annual summary, Form 300A. More lawsuits commenced. The next day, Public Citizen and other public health groups sued again, claiming the new regulation was improper. Shortly thereafter, six states sued OSHA claiming it did not provide enough justification for the rollback of the data collection and claiming that the states need that additional information to ensure the safety of all of its residents. Not to be outdone, the industry groups that previously filed lawsuits concerning the original amended regulation from 2016 have recently renewed those lawsuits, claiming OSHA did not go far enough in rolling back the prior 2016 regulation.

What’s Next?

The courts will need to sort out the five separate lawsuits on this topic, and there may be appeals to each of those decisions. Unless and until those courts are heard from, employers need only electronically submit the annual summary Form 300A. While most state OSHA plans adopted the 2016 federal regulation, the state regulations provided for electronic submission through OSHA’s federal ITA portal. The federal ITA portal is, however, only set up to accept the Form 300A. So, unless the state OSHA plans establish another mechanism for receiving the electronic submission of the 300 Logs and Form 301, then, as a practical matter, employers may only submit the Form 300A. So far, none of the state administrations plan adopt the January 2019 amended regulation, but expect some states will and some will not. So, keep checking on this issue, as it seems the requirements for employers are destined to continue to change. 

Originally published by Construction Executive.

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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