After months of consideration, the Occupational Safety and Health Administration (OSHA) has officially set Dec. 15 as the day employers must electronically report injury and illness data through its Injury Tracking Application (ITA).
The rule, which took effect Jan. 1, requires certain employers to electronically submit injury and illness information they are already required to keep under existing OSHA regulations. It initially called for certain employers to electronically submit their 2016 Form 300A to OSHA by July 1. Data from the Form 300A—an annual summary of workplace injuries and illnesses—subsequently would be posted on an OSHA website for public viewing. But a week before July 1, OSHA said the deadline would be extended to Dec. 1 to enable the new administration to review the electronic reporting requirements prior to their implementation.
In late November, the deadline was pushed back to Dec. 15. And, for now, the electronic reporting requirement is the only part of the rule that is a certainty.
“It looks like the new administration is moving forward with the electronic reporting requirement after all,” says Noelle Abastillas, a senior labor and employment attorney at Kilpatrick Townsend & Stockton who counsels employers on drug testing and OSHA regulatory issues. “We thought there was a strong possibility that the new administration would eliminate or scale back the electronic reporting requirement due to employer concerns regarding the onerous nature of the reporting process and the potential publication of proprietary information on an OSHA website.”
Abastillas explained that it’s still unclear if OSHA will publish the information to its website. In a press release, OSHA said it’s “currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”
Another major provision being considered under the rule is one that prohibits employers from retaliating against workers for reporting an injury or illness. The provision requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by displaying the already-required OSHA workplace poster.
Earlier in the year, Abastillas explained that the new anti-retaliation rule broadens OSHA’s authority to prosecute retaliation claims on behalf of workers. Previously, OSHA could not pursue a retaliation claim against an employer unless the affected worker filed a complaint with OSHA within 30 days for the retaliatory act. With the new rule, Abastillas notes, OSHA can pursue retaliation claims against employers even if no worker files a retaliation complaint.
It didn’t take employers long to figure out that the electronic reporting rule’s anti-retaliation provisions could prohibit mandatory post-incident drug-testing policies. OSHA has taken the position that employers cannot use drug testing to retaliate against employees, Abastillas says, because testing could be perceived by workers as invasive, embarrassing, or an invasion of privacy.
In August, OSHA published a notice saying that it "intends to issue a proposal to reconsider, revise, or remove provisions of the improve Tracking of Workplace Injuries and Illnesses final rule," which would have provided an opportunity for public comment. So far OSHA has yet act further.
In October, President Donald Trump nominated Scott Mugno, vice president of safety, sustainability and vehicle maintenance at FedEx Ground, to lead OSHA as the assistant secretary of labor. Mungo has yet to be approved by the Senate. Once that happens, Abastillas expects to see more guidance from OSHA on the remaining provisions in the final rule, such as whether the workplace injury and illness information will be published online and the impact of the anti-retaliation provision on employer safety incentive programs and post-incident drug testing policies.
