On August 1, 2017, OSHA went “live” with its data submission platform that certain employers will need to use when submitting their injury and illness data to the agency by the revised December 1, 2017, deadline. The requirements arise under OSHA’s electronic recordkeeping rule, which was promulgated on May 12, 2016. The original data submission deadline had been July 1, 2017, but was delayed to permit OSHA to develop its web-based program and for employers to gain familiarity with the new system.
WHAT IF DATA IS SEARCHABLE
While injured employees’ personal identifying information will be redacted, left unanswered in OSHA’s announcement is whether the agency still intends for the submitted data to be publicly searchable by establishment, which was the original intent of the rule. Under the previous administration, this public access was intended to spur greater safety efforts through peer pressure and “public shaming,” part of OSHA’s effort to use behavioral economics to improve safety performance. The public disclosure of data was among the controversial aspects of the rule, and prompted multiple groups to file suit against OSHA over the final rule.
If the data is ultimately searchable by company name and location, this information will certainly be used by general contractors to verify data reported by subcontractors as part of a prequalification process (as well as by those companies that do the screening for their clients). In addition, OSHA will be able to use it to pinpoint companies with patterns or practices of injuries or illnesses for enforcement purposes. Because occupational illnesses will be included, plaintiff attorneys will also be able to see which construction companies have trends of reportable conditions such as silica-related lung cancer and silicosis, which could be used to develop class actions in states or situations where worker’s compensation is not an exclusive remedy.
THE E-RECORDKEEPING STANDARD
Under the e-recordkeeping standard, 29 CFR Part 1904 was modified to require all employers with worksites or 250 or more workers, as well as locations with between 20-249 employees in selected NAICS codes (mostly construction, manufacturing, and certain other high hazard sectors), to submit their injury/illness information to OSHA, for public posting. Because of its hazardous nature and high injury rates, all construction employers who have 20 or more workers must submit their data. If the employer also supervises temporary workers (e.g., from a labor agency or hiring hall) or contingent workers (day laborers), any of their injuries or illnesses must be included in the host employer’s log.
In 2017, all covered employers will submit only data included on Form 300A; in subsequent years, establishments with 250 or more workers will also submit the data from Forms 300 and 301, while smaller operations will continue to provide only the summary data (Form 300A). The reporting deadline shifts to July 1 in 2018, and to March 2nd in subsequent years.
The rule also contains anti-retaliation provisions, protecting injured workers from disparate treatment in incentive, discipline and drug testing programs, and that portion of the rule became effective on December 1, 2016. The rule is currently in litigation before the US Court of Appeals, but the court declined to stay implementation while the case is pending.
OPTIONS FOR DATA SUBMISSION
OSHA has provided a secure website containing its Injury Tracking Application (ITA), which offers three options for data submission. First, users will be able to manually enter data into a web form. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). OSHA anticipates it will take 10 minutes to create an account, and then 10 minutes to input or upload the data. No paper submissions will be accepted for compliance, and employers who lack internet access are encouraged to do their submissions from public facilities such as libraries, which offer free internet access.
TRIGGER IS BY ESTABLISHMENT SIZE
In launching its new system, OSHA clarifies that the size trigger is by establishment size, not firm size, because these records are maintained at the establishment level. Firms, by contrast, are often comprised of multiple establishments.
Section 1904.46 of OSHA’s recordkeeping regulation includes a definition of the term “establishment,” which is key to this new reporting requirement. OSHA guidance states:
An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities. Section 1904.30(a) provides that employers must keep a separate OSHA 300 log for each establishment that is expected to be in operation for one year or longer. If your company has a continuous presence at a client’s site (i.e., a physical space at the job site for one year or longer), you must treat it as an establishment and maintain an OSHA 300 log.
On the other hand, Section 1904.30(b)(1) provides that for short-term establishments, (i.e., those that will exist for less than one year, such as short-term construction worksites or service and repair work by mechanical or electrical contractors), employers are required to keep injury and illness records, but are not required to keep separate OSHA 300 logs. Instead, employers may keep a single OSHA 300 log covering all of its short-term establishments, or they may include short-term establishment records in logs that cover individual company divisions or geographic regions.
Regardless of the method of internal tracking, the data for those establishments meeting the size and NAICS criteria will need to be submitted on or before December 1, 2017, and thereafter. If an establishment is partially exempt from OSHA recordkeeping due to industry code (e.g., an administrative office location of a construction business) then no data should be submitted for those establishments. OSHA has clarified that companies may submit establishment-specific data for multiple establishments, using a single account registration.
Third parties may also handle the submissions for the employer, but legal responsibility for the accuracy of the information remains with the employer. Furnishing false I/I data to OSHA can be criminally prosecuted. In addition, if the employer also gets an I/I data inquiry from the Bureau of Labor Statistics, it must still provide BLS with the requested data, even if it was previously submitted to OSHA.
Technical information on how to submit data and ancillary information about the final rule and OSHA requirements are available at www.osha.gov/injuryreporting/index.html. ■
About the Author
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, August 2017
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