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BusinessColumnistsJamie Herzlich

OSHA electronic filing rule delayed after business push-back

An OSHA rule that would require many companies

An OSHA rule that would require many companies to file injury reports electronically has been delayed. Credit: Getty Images / iStockphoto

The Occupational Safety and Health Administration recently announced a delay on its electronic reporting rule that would make a large number of companies’ workplace illness and injury information public.

With President Donald Trump’s goal of reducing regulations and with litigation pending against the rule, some experts wonder whether it will ultimately see the light of day or be revised in some way.

“It’s not really entirely clear yet,” says Daniel R. Flynn, a partner at the Dinsmore & Shohl LLP law firm in Chicago.

Still, he says companies should “prepare to comply with the rule on December 1 and actively monitor OSHA’s announcements to see if they will reverse or rescind it before then.”

The original deadline to begin electronic filing of injury and illness reports was July 1.

Business groups including the U.S. Chamber of Commerce have opposed the rule, and there are two lawsuits challenging it, Flynn says.

Labor officials in the Obama administration said they hoped the threat of public scrutiny would give companies an incentive to create safer workplaces. But some businesses feared that making the illness and injury reports public could unfairly damage companies’ reputations, or be used against them by labor unions.

The rule doesn’t require employers to collect any more information than previously. But if OSHA ultimately implements the measure, establishments with 250 or more employees that are now obligated to maintain certain OSHA injury and illness records will have to submit information from those records to OSHA electronically, Flynn says. OSHA would then make the data public online, after redacting certain information such as employee names.

Firms with 20 to 249 employees in certain high-risk industries would also have to electronically submit information, while small firms and those under 249 employees in low-hazard industries would have to submit only upon request, he says.

Previously employers were required to maintain paper records of illness and injury reports but only had to supply the information to OSHA upon request, says Frank Brennan, a partner at Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana LLP in Uniondale.

While it’s not clear yet what OSHA will do, he says the rule may get a modified rollout, where impacted employers will have to file electronically but the data would not be made public.

“I think they’re going to take a look at the publication of the data, because that’s where there has been some opposition,” he says, noting the Obama administration “liked to ‘Scarlet Letter’ employers into complying with statutes.”

Debbie Berkowitz, a senior fellow at the Washington-based National Employment Law Project (NELP) and a former senior policy adviser at OSHA under President Barack Obama, says: “There is no reason for the delay, and NELP urges the agency to collect this information as soon as possible.”

In a response to Newsday regarding the delay, OSHA said it expects to launch the data collection system by Aug. 1, with submissions due by Dec. 1. That would give employers a four-month window to electronically submit their 2016 data.

Berkowitz says collecting the information is important, as OSHA has limited resources and the illness and injury data would help it target those resources more effectively to the most dangerous workplaces.

In the meantime, businesses should make sure their injury and illness logs and summaries are up-to-date and accurate, says Angelo Garcia III, principal industrial hygienist at Syosset-based Future Environment Designs, an indoor air quality and industrial hygiene consulting firm that provides OSHA compliance training.

There are also anti-retaliation measures that went into effect with this rule in December that haven’t been delayed, so ensure your workplace safety policies and incentive programs aren’t designed to prevent or discourage employees from reporting their injury or illness, Brennan says.

Fast fact: 466,000

Estimated number of work sites subject to electronic record-keeping requirements

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