OSHA's Rollback of Electronic Recordkeeping Rule Draws Backlash From Coalition Groups

As discussed in our previous Alert, in May of 2016, OSHA issued a final rule requiring (1) establishments with 250 or more employees to electronically submit their OSHA 300, 301, and 300A injury and illness logs and (2) other establishments in high-risk industries to electronically submit their OSHA 300A injury and illness logs (the "Electronic Recordkeeping Rule"). The Electronic Recordkeeping Rule generated significant concern among employers based on OSHA's intent to publish each establishment’s injury and illness data on its public website, www.osha.gov. Employers' concerns included the potential exposure of private health information and the fact that employees, unions, and plaintiff’s attorneys could see each establishment's recordable injuries and illnesses, and, potentially, use that information to bring claims or lawsuits against employers.

New Final Rule issued

On January 25, 2019, OSHA published its new final rule removing the requirement that establishments with 250 or more employers electronically submit their OSHA 300 and 301 forms to OSHA each year. Instead, these establishments, along with those in high-risk industries, need only electronically submit their OSHA 300A form. Although the final rule does not alter employers' obligations to maintain their injury and illness logs on-site, the final rule addresses many employers' concerns regarding employee privacy and the potential misuse of injury and illness data. For all employers subject to the Electronic Recordkeeping Rule, the deadline to electronically submit the 300A form is March 2, 2019.

The Debate Rages On

Since OSHA announced its intent to revise the Electronic Recordkeeping Rule, a coalition of public interest and labor groups filed a lawsuit against the U.S. Department of Labor challenging OSHA's decision to remove the requirement that establishments with 250 or more employees annually submit OSHA 300 and 301 logs. In its January 25, 2019 filing, the coalition alleges that OSHA's revised rule should be declared unlawful and its "action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.” The coalition lawsuit alleges OSHA (1) failed to provide a reasoned explanation for its change in position, (2) failed to adequately consider comments submitted in opposition to the change, and (3) relied on considerations that have no sound basis in law.

The likelihood of success of the coalition's challenge to the revised Electronic Recordkeeping Rule remains to be seen. But, while the coalition's lawsuit is pending, establishments with 250 or more employees, along with those in high risk industries, must submit their OSHA 300A logs by March 2, 2019.

If you have questions about OSHA's recordkeeping requirements or how to comply with OSHA's regulations, please contact your local Quarles & Brady attorney or:

• Kerry M. Mohan: (608) 283-2620 / kerry.mohan@quarles.com
• Fred Gants: (608) 283-2618 / fred.gants@quarles.com