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OSHA’s Proposed Changes to the Recordkeeping Rule Will Lead to Significantly More Inspections – How Employers Can Submit Comments to OSHA Concerning This Aggressive Change

OSHA has a very ambitious regulatory agenda this year.  Most recently, it announced a proposed regulation to require electronic reporting of injuries and illnesses quarterly and the creation of an online searchable database for those reported injuries and illnesses.  While OSHA emphasizes that the proposed regulation will not alter employers’ basic recordkeeping duties, it will dramatically change the way that OSHA uses injury and illness data to select employers for inspections, and provide unions, community activists, plaintiffs’ lawyers, and competitors with easy access to that data as well.

OSHA’s proposal includes three key changes:

  • First, it will require establishments with 250 or more employees (including full-time, part-time, temporary and seasonal workers) at any time during the previous calendar year to electronically submit to OSHA all information from the records that they keep under the Recordkeeping Rule on a quarterly basis, including all individual entries on the OSHA Form 300 and the information entered on each OSHA Form 301.           
  • Second, it will require establishments with 20 or more employees in designated industries to electronically submit the information from the OSHA summary form (Form 300A) to OSHA on an annual basis.  The list of “designated industries” is expansive, affecting over fifty industries ranging from construction and manufacturing to gambling, spectator sports and department stores.  This will replace the current requirement that employers complete OSHA’s annual survey form and submit it.          
  • Third, it will require that all employers who receive a notification from OSHA submit information from their injury and illness records electronically to OSHA, for the time period and at the intervals specified by the notification. 

The potential ramifications of these changes are far-reaching.  Currently, employers must orally report the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident to OSHA within eight hours of learning of the fatality or hospitalizations, but need not immediately report other significant injuries and illnesses.  With quarterly reporting, OSHA will know quickly whether there has been a significant injury or illness at your establishment which you have not been required to report immediately in the past, such as an amputation, disfigurement, ergonomic injury or a single hospitalization.  By requiring a quarterly report, OSHA can ensure that it learns of the injury and has enough time to get an inspection team to your establishment before the 6 month statute of limitations for issuing citations elapses.

OSHA intends to make all of this injury and illness data publically available through a searchable database.  Only information that is protected by the Freedom of Information Act, the Privacy Act, certain provisions of the Recordkeeping Rule (which protect the privacy of cases involving mental illness, certain illnesses, or sexual assault), and the injured employees’ names will be kept private.  Given the information that the OSHA recordkeeping forms require, this database will provide a very limited discussion about each injury and illness and will omit mitigating and exculpatory information such as an employee’s failure to follow his training. Using these limited discussions, the media, competitors, plaintiffs’ lawyers, unions, and their allies can distort the injury and illness data for any individual employer and publically misrepresent them as “bad actors” or as having an inadequate safety program.  And given OSHA’s limited resources and the recent reports about the lack of cyber security for the health care data base, it is easy to imagine that proprietary or personal information will become very public.           

Further, these changes could even increase employer exposure to criminal liability should their reports contain any false statements, pursuant to 18 U.S.C. § 1001   Specifically, this federal law prohibits anyone in any matter within the jurisdiction of the Federal Government from making materially false, fictitious or fraudulent misrepresentations or making or using any false writing or document known to contain any materially false statement or entry.  The law specifically includes statements made and documents used in administrative matters.  Under the current Recordkeeping Rule, employers have no duty to submit these records to OSHA so this law has not applied, but under the proposed Recordkeeping Rule, this law would clearly apply; thus, employers would need to ensure that heightened care is taken when investigating and reporting injuries and illnesses.  

Employers can provide comments to OSHA regarding the proposed recordkeeping changes in two ways.  First, they have until February 6, 2014 to submit written comments on the proposed rule. Employers should use this opportunity to write a detailed impact statement to OSHA explaining the burdens and threats that these proposed rules pose for their industries.  Second, employers can voice their concerns at a public meeting OSHA will hold in Washington, D.C. on January 9, 2014 from 9 AM to 4:30 PM at the United States Department of Labor.  The deadline to request to attend the meeting as a speaker or observer is December 13, 2013.  OSHA is required to take employers’ comments into consideration so these opportunities should not be taken lightly.  Stakeholder commentary has resulted in major changes to proposed rules in the past, and in some cases, even led to proposed rules being completely abandoned.   

For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.


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