Employers subject to recordkeeping regulations should immediately begin preparing electronic submissions to comply with the December 15 deadline.
On December 18, 2017, the Occupational Safety and Health Administration (OSHA) announced that it will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017. Covered employers who file their information through ITA by December 31, 2017 will avoid any enforcement action. Starting January 1, 2018, the ITA will no longer accept the 2016 data.
OSHA published a Final Rule (the Final Rule) on November 24 amending certain electronic reporting requirements in the Improve Tracking of Workplace Injuries and Illnesses regulation.
The Final Rule extends the deadline for electronic submission of OSHA’s Form 300A until December 15, 2017. OSHA previously extended the original compliance deadline from July 1, 2017 to December 1, 2017 in June. While the only immediate effect of the Final Rule is a two-week delay for electronic submission of Form 300As by employers, the Final Rule also signals that the agency may be considering significant changes to the remaining substantive requirements with its announcement that OSHA intends to issue a separate proposal to reconsider, revise, or remove other substantive provisions related to reporting requirements in the Improve Tracking of Workplace Injuries and Illnesses regulation under a separate rulemaking.
On May 12, 2016, OSHA published a Final Rule to the Improve Tracking of Workplace Injuries and Illnesses regulation (the Initial Final Rule). The Initial Final Rule amended the recordkeeping requirements to impose a new obligation upon most employers to submit certain electronic injury and illness data to OSHA annually. Prior to this amendment, OSHA generally only gained access to these records as part of an inspection or pursuant to a limited number of specific written requests. The Initial Final Rule became effective on December 1, 2016 and required that covered employers electronically submit their 2016 OSHA Form 300A logs by July 1, 2017, their 2017 OSHA Form 300A logs by July 1, 2018, and their subsequent OSHA Form 300A logs annually by March 2 of the subsequent year, beginning with the 2018 OSHA Form 300As on March 2, 2019. In addition, the Initial Final Rule required that certain large employers electronically submit 2017 OSHA Forms 300 and 301 by July 1, 2018 and the prior year’s OSHA Forms 300 and 301 by March 2 of the subsequent year, beginning with the 2018 OSHA Forms 300 and 301 on March 2, 2019.
On June 28, 2017, OSHA published a Notice of Proposed Rulemaking to the Improve Tracking of Workplace Injuries and Illnesses regulation (the Proposed Rule). The Proposed Rule sought to delay the initial deadline for electronic submission of the 2016 OSHA Form 300As from July 1, 2017 until December 1, 2017. OSHA’s basis for this initial delay was a desire to provide the new administration time to review the electronic reporting requirements and employers with a four-month period to become familiar with the electronic reporting system between the launch date of the OSHA reporting website (the Injury Tracking Application) and the compliance deadline. While OSHA originally planned to launch the Injury Tracking Application in February 2017, the Injury Tracking Application was not yet live when OSHA issued the Proposed Rule. Therefore, employer compliance with the July 1, 2017 electronic reporting deadline was impossible. Employers were finally able to access the Injury Tracking Application on August 1, 2017.
The Final Rule delays the compliance date for electronic submission of 2016 OSHA Form 300As until December 15, 2017. OSHA wanted to maintain a four-month period for employers to become familiar with the Injury Tracking Application and concluded that the Final Rule’s two-week delay would account for a two-week period in August 2017 where the Injury Tracking Application was taken offline after OSHA was alerted by the US Department of Homeland Security that their online reporting website had been hacked. The two-week delay also provides additional time for OSHA to ensure that the Injury Tracking Application functions properly.
OSHA believes that this modest delay still provides ample time for employers to comply with the electronic reporting requirements, as employers were already required to complete, certify, and post their 2016 OSHA Form 300As by February 1, 2017. Moreover, OSHA appears to believe that any additional requirements related to electronic submission should not prove too difficult, as employers created 668 accounts, registered 1,000 establishments, and submitted 919 OSHA Form 300As for the year 2016 on August 1, 2017—the first day that employers could access the Injury Tracking Application. However, the Final Rule does not provide any similar statistics for the period through the Final Rule’s publication date.
Significantly, the Final Rule delays only the original July 1, 2017 compliance date for electronic submission of 2016 OSHA Form 300As. It does not delay, or even address, any other requirements under the Initial Final Rule. OSHA rejected employer comments to the Proposed Rule supporting a longer delay as a means by which OSHA could reevaluate the Initial Final Rule as a whole. Instead, the Final Rule explicitly provides that OSHA will issue a separate proposal to reconsider, revise, or remove other substantive provisions of the Initial Final Rule (such as the 300 logs which some have characterized as significantly more burdensome than the submission of the Form 300A summaries.) As a result, employers should still prepare to submit their 2017 OSHA Form 300As by July 1, 2018, and follow the other substantive requirements identified under the Initial Final Rule.
To the extent they have not done so already, employers covered under OSHA’s recordkeeping regulations should immediately begin the process of preparing electronic submission of their OSHA Form 300As in order to comply with the December 15, 2017 deadline. Steps include collecting the OSHA Form 300A data electronically, familiarizing themselves with the Injury Tracking Application, and reviewing the three options OSHA currently provides for electronic submission of data. Employers should also be alert for publication of a separate proposed rule by OSHA addressing other substantive requirements under the Initial Final Rule.
We will continue to monitor these developments over the coming months.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
 See Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 225 (Nov. 24, 2017).
 See Improve Tracking of Workplace Injuries and Illnesses: Proposed Delay of Compliance Date, 83 Fed. Reg. 123 (June 28, 2017).