No Hail Mary Pass: The Electronic Submission Rule is Here

Active now after a confusing and complex process

The Electronic Submission Rule is a new rule that was heavily contested by some sectors of industry, generally due to the attached provisions within the rule regarding anti-retaliation, and the privacy concerns of companies, with the coming release of partially redacted data.

The Rule requires employers with 250 or more employees in industries covered by the recordkeeping regulation, as well as employers with 20 or more employees in certain high hazard industries to annually submit information from their 300 Logs to OSHA via a secure website.  The rule also carries anti-retaliation requirements, which impact use of incentive programs as well as drug-testing, if used for the purpose of preventing accident and injury reporting. OSHA will use the gathered information to focus enforcement.

And in time, OSHA will post redacted data which gives employees and the public a snapshot of the company’s safety record. OSHA hopes that releasing this data, like transparency in other areas, will increase employers desire for a safe and healthy workplace.

The phases of this Rule can best be summarized as follows: Ready. Set. Stop. Start. Delay. Contested. Limbo. Delay. Misleading Information. Here. It. Is. Go.

This rule has been a long and complex journey for those who follow workplace safety–most especially for employers. Portions of a different recordkeeping rule were even overturned in spring and many employers had hopes that this one would be also. The Electronic Submission Rule was certainly contested due to privacy concerns by employers.

Other employers mistook the overturned rule for this one, as they both dealt with recordkeeping. Some industry websites even incorrectly stated it had been overturned, mixing the two recordkeeping rules together.  And by doing so, many employers assumed they did not need to pay attention to the Electronic Submission Rule’s dates of compliance. By others, there were last minute hopes that the Electronic Submission Rule would be eliminated or softened.

Background

Initially, the rule had a compliance deadline of July 01, 2017 for 2016 300 Log submissions, but on May 17 2017, OSHA announced that date would be pushed back, but no new effective date was mentioned in an email sent to stakeholders.

At that time, it was unclear how long the delay would be or the ultimate impacts on compliance. In addition, OSHA was functioning without a Secretary of Labor, which also created further delays. Concerns were made about whether OSHA could have a robust website for uploading of all the data by employers in any near future time frame, as the agency is extremely underfunded.

A quick scan of the internet will tell you a variety of conflicting dates and information. And yes, the deadlines for compliance were delayed, moved and generally confusing for many.

For example, IOSHA (Indiana State Plan OSHA) has this below currently posted on their website, with a July 01 deadline. Yet, on July 01, 2017, OSHA did not have the website live. And had no date posted for new compliance deadlines. Weeks ticked by….

IOSHA website

And then, for a long time the Electronic Submission Recordkeeping rule was in limbo. Silence reigned.

Finally, in mid-July (weeks after the above date for the submission deadline), OSHA announced that the Injury Tracking Application (ITA), where employers must go to upload or share 300 Log information, would be live on August 01, 2017.

And  then OSHA proposed to extend the 2017 compliance date for electronically submitting injury and illness reports from July 1 to December 1.

This too was followed by another extension in late November, moving the deadline backwards to December 15, 2017. (See below for details)

And still, there were a range of hopes by employers and various industry groups that this rule would still be contested by this Administration or dropped or delayed again.

Even today, when you read about the rule on various sites, you’ll find it was “overturned,” “delayed” and “no new dates for compliance were given” and “delayed again.”

Employers are constantly bombarded with a series of email newsletters and industry bulletins.  These went the gambit of fear mongering and inaccurate information with headlines like “New Overreaching OSHA Rule” and “Rule on Recordkeeping Overturned” and “Delays in OSHA Electronic Rule Could Mean Rule Changes.” (Some of these mixed another rule with this one.)

Many were confused if they performed an internet search on OSHA’s new recordkeeping rules, and found that that OSHA’s website did not have the updated ITA well past the July 01 deadline, as well as read elsewhere that the “recordkeeping rule was overturned.”

The above are all reasons many employers are still in the dark about the rule. I polled my clients this summer and few were aware of the Electronic Submission Rule, while others thought it was part of the overturned rule.

To clarify, the Rule mentioned above that was overturned, was another recordkeeping rule, not the Electronic Submission Rule. Overturned by the Congressional Review Act, the “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” intended to clarify the recordkeeping requirement and extended the period in which an employer can be cited for alleged violations from 6 months to 5-and-a-half years after an alleged violation has taken place.

Yet, it stands with a looming deadline. Employers who are impacted must comply.

There is no Hail Mary pass.

The deadline to submit the 2016 300 Log data has been (again) moved back from December 01, 2017 for affected employers. On November 27th, OSHA announced on their Electronic Submission Rule page that the new deadline is December 15, 2017 for the 2016 300 Logs.

Bottom line: If your company employs (or did employ) 20 -249 workers in 2016 and your NAICS code or prefix code for manufacturing, agriculture or construction appears on this list, you’ll need to submit the 2016 300A data by December 15, 2017. And if your company employs 250 or more workers and you routinely must keep 300 Logs, you must also follow the same deadline.

 

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