The following is a bulletin published by our partners at Constangy, Brooks, Smith & Prophete, LLP.
As we have previously reported, the Occupational Safety and Health Administration was going to require certain employers to submit their Form 300A annual injury and illness summaries electronically. This requirement was part of the Agency’s new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” promulgated during the Obama Administration. Electronic versions of the Form 300A summaries for 2016 would have been due July 1 (this Saturday).
However, the Agency published a Notice of Proposed Rulemaking in today’s Federal Register to extend the July 1 deadline for five months, until December 1, 2017. In addition to proposing the five-month delay, OSHA announced in the Notice that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the new injury and illness tracking rule. Besides the electronic submission requirement, that new rule, issued on May 12, 2016, also includes controversial new anti-retaliation requirements that OSHA interpreted as restricting post-injury drug testing and incident-based safety incentive programs. Also controversial, and likely to be part of OSHA’s planned reconsideration, was the Obama Administration’s plan to post the injury and illness information submitted by employers on OSHA’s website. OSHA will accept comments on the due date extension proposed in today’s Notice until July 13, but will not yet consider any comments on other provisions of the new rule.
Primarily, the new injury and illness tracking rule requires larger establishments with at least 250 employees at any time during the previous calendar year to submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries to the Agency through a new website that would allow, with very limited exceptions, for public access to that information. Smaller establishments, with at least 20 employees, in certain industries with high injury and illness rates, are required to submit the information from their 300A Annual Summary to the new OSHA injury and illness website each year. These electronic submission requirements were to be phased in over a two-year period. Before today’s proposed extension, both larger and smaller establishments would have been required to submit their 300A Forms – but not the OSHA 300 logs or the 301 Incident Reports – by July 1.
We will continue to monitor for additional information about the extension and other possible changes to the rule and OSHA’s interpretation of it, including the controversial anti-retaliation provisions, and will alert you to any developments.