With a July 1, 2017 deadline looming, the Occupational Safety and Health Administration (OSHA) just announced on its website an indefinite extension for the electronic submission of injury and illness logs. This extension delays the electronic reporting deadline in OSHA’s May 12, 2016 final rule, Improve Tracking of Workplace Injuries and Illnesses (Final Rule), which had most recently required regulated employers to electronically submit data from 2016 Form 300A by July 1, 2017. OSHA has not announced a new deadline and has only indicated that updated information will be made available on its website here.
OSHA did not provide an explanation for postponing the deadline. It may, in part, be attributable to OSHA’s failure to establish a secure means for electronic submissions. OSHA has previously indicated it would create a secure website to accept submissions, but the agency has yet to release further information regarding the website or submission process. Members of regulated industries have been asking how submissions are to be made absent such a channel.
Also, the delay is not surprising in the current regulatory climate: budget cuts, on-going litigation related to the substantive requirements of the 2016 Final Rule, and legislative efforts in the U.S. Congress have cast doubt on whether certain Obama-era regulations will be enforced, modified, or repealed. Observers speculate that the Trump administration will continue to minimize regulatory burdens on industry, which may, in addition to indefinitely postponing electronic recordkeeping requirements, include a reduction or complete removal of the latest injury and illness recordkeeping and reporting requirements stated in the 2016 Final Rule.
In fact, in April 2017, the Trump Administration and Congress worked together using the Congressional Review Act to revoke the Volks rule. Previous to such revocation, the Volks rule authorized OSHA to cite employers for failing to properly record injuries or illnesses during a five-year records retention period, even if such failure was outside of the six-month statute of limitations. Under the Volks rule, such recordkeeping violations more than six months old were viewed as a “continuing” violation of OSHA requirements. Democratic lawmakers recently introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstate OSHA’s enforcement authority under the Volks rule. The bill does not have bi-partisan support, but the bill highlights the competing interests underlying current issues relating to occupational safety and health.
Please note that the indefinite extension affects only the electronic reporting requirements in the Final Rule requiring submission of the 2016 Form 300A by employers with 250 or more employees, as well as employers with 20 to 249 employees in certain high-risk industries. Employers should continue to comply with other parts of the Final Rule, including those provisions that prohibit discrimination against employees who report injuries or illnesses (i.e., the anti-retaliation provisions).
We are continuing to monitor the development, delay, or modification of the Final Rule. Links to our previous discussions, which provide additional background on the substantive requirements, are available below.
For questions regarding the contents of this alert or how the new regulations affect your business, please contact Bryan Keyt (312-602-5036), Erin Brooks (314-259-2393), or any member of the Bryan Cave OSHA team.