Part 1: OSHA Recordkeeping and Electronic Submission Rule Questions, Answered

March 21st, 2018 by Jay Finegan, CHMM

The new OSHA recordkeeping and electronic submission rule has been a source of confusion for many EHS professionals for some time, now, and we all want answers! In this 3-part blog series, I will be answering numerous questions everyone should be asking. To read parts 2 and 3, click the linke below:
Part 2
Part 3

Question: What is the new OSHA recordkeeping and electronic submission rule all about, and who’s affected?

Answer: OSHA has included certain recordkeeping requirements from the very beginning in 1970, anticipating that employers could analyze injury/illness data to continually improve workplace safety. This latest revision to the recordkeeping rule, found at 29 CFR 1904, extends the historical requirements applicable to individual facilities and corporations to a national database. It applies to those facilities which have long been subject to OSHA’s recordkeeping requirements, and to facilities in select industries which have between 20 and 249 employees. Among the select industries are retail, transportation services, the performing arts, spectator sports, gambling operations, and community services. The full list of affected industries, list by NAICS code, can be found in the appendix to 29 CFR 1904, Subpart E.

In this last reporting cycle, facilities reported basic facility information, such as name, address and industry, labor statistics such as headcount and hours worked, and injury and illness counts and statistics from their 2016 OSHA 300A annual summary. The comparable 2017 data is due on July 1 of this year. In addition, if your facility has 250 or more employees, you will need to submit supporting data from the OSHA 300 log and the OSHA 301 incident reports. This supporting data includes all of the data on the 300 Log except the injured worker’s name (column B) and all of the data on the 301 Injury Report, other than the worker and provider details (Fields 1 through 9). The reporting deadline for all subsequent years will be March 2.

The rule also strengthens OSHA’s prohibitions against retaliating or discriminating against workers who report injuries, a topic which I will discuss in greater detail in a couple of minutes.

Question: What would you say is the most surprising thing in the new rule?

Answer: I wouldn’t say that this rule contains much that EHS professionals would find surprising, but the anti-discrimination provisions are hidden traps that every employer should pay particular heed to. However, since I work for a software company, I will offer an item which surprises me, even though others might not notice it. Under certain circumstances, OSHA’s database uses the user-supplied facility name as its primary key. This means that no two facilities within a single corporation can have identical names so that when you upload data, the database can use the facility name to recognize how to associate the new data with existing data. Text strings like a facility’s name are particularly susceptible to typographical errors and are therefore notoriously bad database keys. For comparison purposes, consider other regulatory database systems, such as RCRAInfo and the Toxic Release Inventory, which use more reliable system-assigned facility ID numbers.

Let me illustrate this with an example. I’m in Cleveland, OH, and not too far away is GM’s Lordstown assembly facility. Assume that GM has officially identified this facility as quote, General Motors Lordstown Assembly Plant, end quote. Any submission that does not use this exact phrase, for example, one that contains the phrase GM Lordstown Assy, will fail. We humans would recognize that these two terms represent the same facility, but a computer trying to match the strings would conclude that the new submission pertains to either a new facility or a facility does not exist. To take this to a facetious level, this would be equivalent to the IRS relying on the taxpayer to provide his or her own unique identifier.

Question: What aspect of the rules are employers most likely to overlook?

Answer: Finally, let’s talk about those anti-retaliation provisions - the hidden traps I mentioned. OSHA has long prohibited employers from retaliating against workers who engaged in protected activities, such as filing a safety complaint, reporting an injury, or requesting an OSHA inspection. The new rule now requires the employer to explicitly notify workers and their representatives of their legal right to report injuries, the process for doing so, and – perhaps most significantly – the prohibition against employer retaliation. Then, because the rule allows OSHA inspectors to investigate discrimination complaints just like a safety complaint, the rule may expose employers to unwarranted investigations attributable to disgruntled workers who happen to get injured. If OSHA subsequently conducts an on-site investigation, OSHA can cite any issue it finds, resulting in real penalties even if the original discrimination complaint is ultimately found to be unjustified.

On a related note, many companies historically conducted routine drug/alcohol testing following an accident. OSHA felt that blanket testing policies tended to discourage injury reporting, and could even be considered retaliatory. Consequently, the new rule generally prohibits such testing unless the employer has a bona fide basis for believing that drugs or alcohol actually contributed to the accident. This restriction actually creates a direct conflict between OSHA and the Federal Motor Carry Safety Administration, which mandates drug and alcohol testing following any accident.

To further muddy the waters, the new rule has resulted in various lawsuits challenging its provisions, one of the more common being the drug and alcohol testing provision. In addition, President Trump got elected with his limited government limit regulation agenda. While the prohibition is the current law, its status a year or two from now is much less clear.

Finally, the rule gives legal effect to a non-enforceable 2012 memo from Richard Fairfax, OSHA’s Deputy Assistant Secretary at the time. In that memo, Fairfax warned field managers about various practices that explicitly or implicitly discouraged employees from reporting injuries. Among the latter practices cited were some safety incentive programs, no doubt spurred by a 2010 GAO study, which concluded that 75% of manufacturers had a safety incentive program that may have affected workers’ reporting of injuries. Under the new rule, OSHA doesn’t prohibit such programs outright but will be looking closely at them to ensure that they don’t implicitly discourage workers from reporting injuries. My previous employer and I struggled with this very issue. After going over a year without a recordable injury, we wanted to reward our folks with a luncheon. But we questioned whether doing so would send an unintended message – when we go long enough without an injury, everyone gets a steak, a hoodie, or some similar reward. In the end, we provided the meal. But prior to sitting down to enjoy our barbecue, the facility manager gave a short speech in which he praised the accomplishment, concurrently emphasizing in no uncertain terms that, while we were honoring our employees for a notable achievement, we absolutely expected them to report each and every injury. Was such a statement enough to pass OSHA muster? I truly don’t know.

Safety incentive programs are a good thing, so what can you do? The internet is full of ideas, but rewards based on leading indicators, such as participation rates in safety training, submitting safety ideas, and recognition of safe behaviors, are much less likely to raise a concern with OSHA than rewards based on lagging indicators, such as the number of injuries, injury rates, or severity rates.

Stay tuned for part 2 where I will answer questions related to employee reactions, employer potential compliance burden, potential penalties, and enforcement speculations.