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OSHA’S GONNA FIND OUT: Agency keeps ‘naughty list.’ Are you on it?

The Occupational Safety and Health Administration, more commonly known as OSHA, issued an electronic injury-reporting rule in May, 2016.

When issued, OSHA had intended all employers use a “secure” electronic system to eventually submit their injury and illness records using OSHA Form 300 for work-related injuries and illnesses, OSHA Form 301 for injury and illness incident reports and OSHA 300A for annual summaries of work-related injuries and illnesses by establishment.  OSHA would then use this information to publicly shame employers who had high injury or illness rates.

The initial electronic-filing obligation was limited to employers with 250 or more employees and employers with 20 to 249 employees who are classified in certain industries with historically high rates of occupational injuries and illnesses.  The initial filing was limited to the OSHA Form 300A, and the filing due date was July 1, 2017; which was then later moved to Dec. 30, 2017.

In the lead up to Dec. 30, 2017, some 214,000 300A forms were filed; however, this fell far short of the more than 350,000 reports OSHA had expected.  That is, nearly one-third of all employers who were otherwise required to electronically file their OSHA 300A failed to do so.

As a result, on Feb. 21, OSHA issued Interim Enforcement Procedures for Failure to Submit Electronic Illness and Injury Records. The Interim Enforcement Procedures required OSHA compliance officers to seek evidence, when conducting any inspection, of whether employers under scrutiny had met their electronic-filing obligations; and if not, to then issue an Other-Than-Serious citation, carrying a penalty of up to $12,934.

On June 26, OSHA reminded employers of their obligation to file the 2017 OSHA Form 300A by the July 1 deadline. Again, there was a dearth of filings.  OSHA then decided to take the “stick” approach. On October 17th, it announced its new Site-Specific Targeting 2016 Program.  According to the OSHA Release on the Program, “the agency will perform inspections of employers the agency believes should have provided 300A data, but did not for the CY 2016 injury and illness data collection.”  When a compliance officer discovers a failure to comply with the electronic-filing requirement, Other-Than-Serious citations are to be issued in keeping with the Interim Enforcement Procedures.

The web site for filing the required OSHA Form 300A will no longer accept 2016 filings, but will continue to allow employers to upload their 2017 Form 300A and is likely to continue to do so through the remainder of the year.  Forms filed after the July 1st deadline are marked as “late,” but under the Interim Enforcement Procedures, any citation issued for failing to file the form in a timely manner would not be penalized if it were filed before an inspection.

In 2019, employers who are required to file their Form 300A electronically must do so by March 2.

Although OSHA under the Trump Administration has continued to press employers to comply with the electronic-filing obligation of OSHA 300A, it has scaled back any expectation that requirements for filing the OSHA 300 log or the OSHA Form 301s will come to pass.  On Sept. 28, OSHA issued a proposed rule eliminating the electronic filing requirements for 300 Log and Form 301s.

Daniel Kaplan is a partner and litigation lawyer at Foley & Lardner and a chairman of the firm’s labor and employment practice group.

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