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OSHA reveals status of proposed revisions to controversial injury reporting rule

A Notice of Proposed Rulemaking may be just around the corner

Posted October 13, 2017

In a status report filed on October 10 with the U.S. District Court for the Western District of Oklahoma, OSHA said it is continuing to develop a Notice of Proposed Rulemaking to “reconsider, revise, or remove provisions of the Rule.”

The Agency is under a Court order to file a status report every 90 days on its progress toward developing a proposed rule.

In its report, OSHA claims it has already drafted significant portions of the proposed rule, including draft regulatory text and a summary and explanation of the proposed changes. OSHA’s economists have also made “significant progress” on the economic analysis, but they are continuing to refine it. The proposed rule must still undergo the Agency clearance process once the analysis is complete.

OSHA sued over final rule

Almost as soon as OSHA published the Improve Tracking of Workplace Injuries and Illnesses final rule, the Agency was sued in the district court. At issue, provisions in the rule create a national online public database for employers’ injury and illness data. The plaintiffs argue that OSHA does not have statutory authority to require employers to submit this information to the Agency.

Another controversial component of the rule includes a requirement for employers to establish “reasonable” procedures for employees to report work-related injuries. Even more controversial, the so-called “anti-retaliation provisions” in the final rule expanded OSHA’s authority to cite employers for discriminating or retaliating against employees for reporting work-related injuries and illnesses.

On July 11, 2017, the Court placed the suit on hold to allow OSHA time to reconsider the final rule.

Current status of the final rule

The final rule requires certain employers who are already keeping workplace injury and illness logs to submit their 300-A Summary information to OSHA. This year’s submission deadline has been changed several times already. OSHA’s Injury Tracking Application (ITA), the electronic portal for employers to submit their 300-A Summary data to the Agency, has been open for weeks. However, OSHA has proposed to delay the submission date. While the proposed rule has not been finalized, employers are operating under the assumption that December 1, 2017, is the final deadline for submitting data.

Further complicating matters, some OSHA State-Plan States and self-directed state and local-government programs have not yet adopted OSHA’s rule. Employers with establishments in California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming cannot submit their data to OSHA at this point. Covered state and local government establishments in Illinois, Maine, New Jersey, and New York are also not required to submit their data through the reporting portal.

Bottom line

OSHA tells J. J. Keller and Associates, Inc., that the Agency expects around 350,000 establishments are subject to the requirement this year. So far, the Agency has received about 15,000 submissions. Many employers are likely waiting until closer to the December 1 deadline to submit their reports, in case the rule is revised or a further delay is given. If there isn’t a further change or delay, all covered employers should, at the least, prepare to submit the data. While there is no advantage to submitting early, waiting until the last minute could prove problematic if there are technical glitches or other unexpected issues.

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