On July 30, 2018, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) in the Federal Register seeking comments on a proposed measure that would partially rescind the 2016 amendments to its recordkeeping rule. The 2016 amendments required establishments with at least 250 employees, or with at least 20 employees in a high-risk industry, to electronically submit their illness and injury records to OSHA annually, beginning in 2017. However, OSHA was not accepting OSHA 300 and 301 forms on its portal for the July 1, 2018, deadline. 

What Employers Need to Know About the Proposed Amendment

What OSHA proposes to change:

• Employers with at least 250 in a single establishment would no longer need to electronically file (e-file) 300 and 301 logs (but they would still need to e-file the 300A summary annually). The reason for this change given in the proposed rule is that collection of the 300 and 301 logs “adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy.”

• The proposed rule would also add a requirement for employers to submit their employment identification numbers when e-filing 300A summaries to “reduce or eliminate duplicative reporting.”

What OSHA is not changing:

• Employers with 20–249 employees in designated industries would still be required to e-file their 300A summaries annually.

• The proposed changes make no mention of OSHA’s interpretation that suggests post-accident drug testing and safety incentive programs may be a violation of one or more the following provisions:

  • 29 C.F.R. §1904.35(b)(1)(i) (“You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”) 

  • 29 C.F.R. §1904.36 (“In addition to § 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness.”)

• OSHA made no attempt to walk back its interpretation that Part 1904.36 allows the agency to issue citations for employee whistleblower discrimination or retaliation without a complainant and without regard for Section 11(c)’s requirement that whistleblower complaints be filed by a complainant within 30 days of an adverse action.

Key Takeaways

The proposed rules simplify e-filing for establishments with at least 250 employees. Unfortunately, however, OSHA’s failure to propose changes to the interpretation of the remaining rules means that employers with post-accident drug testing programs and safety incentive programs may be at risk. Many regional and area offices will likely continue the status quo with respect to those areas, at least until an assistant secretary is in place.

The agency’s failure to address its earlier controversial interpretations also leaves unclear the status of pending litigation challenging these aspects of the electronic recordkeeping rule. Not long after OSHA published its 2016 amendments, industry groups filed two lawsuits in federal courts in Dallas and Oklahoma City, seeking, among other things, to overturn 29 C.F.R. §§1910.35(b)(1)(i) and 1904.36. These suits were stayed or administratively closed in 2017 after OSHA announced its intention to modify its electronic recordkeeping regulations. The NPRM fails to address several of the issues raised by industry groups in those lawsuits. One or both lawsuits may resume litigation in the near future.

Comments on the proposed rule are due by September 28, 2018.