OSHA Requirements for Electronic Filing Take Effect in New Year
The United States Department of Labor, Occupational Safety and Health Administration (OSHA) has introduced the final rule revisions for regulations on Recording and Reporting Occupational Injuries and Illness (29 CFR 1904), which requires certain employers to electronically submit injury and illness data to OSHA. The content of these establish-specific submissions, however, greatly depends on the size of the business and, moreover, the industry of the employer.
In most cases the required electronic filing will not affect most automotive service-related businesses. Key to the new ruling is that establishments with 250 or more employees will be subject to OSHA’s recordkeeping regulation, and those businesses will be required to electronically submit to OSHA three key reports. These include the Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illness (OSHA Form 300A) and the Injury and Illness Incident Report (OSHA Form 301).
Businesses with 20-249 employees in certain high-risk industries must also electronically file some of the information from the Summary of Work-Related Injuries and Illness (OSHA Form 300A), but establishments with fewer than 20 employees throughout the year do not have to routinely submit this information electronically to OSHA.
“Right now, few fast lube operators would be subject to electronic reporting in this first round of rulemaking because (a) few have 250 employees to meet the size threshold, and (b) none that I know of fall within OSHA’s ‘high risk’ category affecting employers with 20-249 employees,” said Joanna Louise Johnson, president and founder of Johnson Policy Associates, which specializes in safety-related regulatory issues. “Fast lubes and carwashes aren’t ‘high risk,’ so an operator would need an additional covered operation to fall within that category.”
One of the key points however is that this is related to all employees at a location.
“It is really any type of employee; part-time, seasonal and even temps will count as employees,” said Mark Dreux, head of the OSHA Group at the Arent Fox’s Labor & Employment Practice in Washington, DC. “If you have multiple locations it is for each one, so it is 250 per location.”
While few fast lube operators will need to file this information, there are potential headaches for those businesses that need to file these reports.
“With regard to the issue of potential benefits, it’s possible that switching to electronic reporting will ultimately produce benefits interms of eliminating postal costs, lowering storage requirements for paper copies, and hopefully, someday, unified electronic reporting for all regulatory reporting requirements,” Johnson said. “The potential downside is the fact that OSHA will be making electronically reported injury and illness data public.”
Given that hacking stories are sadly routine, and even government agencies — notably the Office of Personnel Management — have been hacked, there is the issue of whether this information might suddenly be in the cross hairs for hackers.
“Sophisticated hackers do seek information,” Dreux warned. “There is a legitimate concern that it could be hacked, but the question would be why they would go after this type of data.”
In most cases, it would be more of an embarrassment than anything that could pose serious risk.
“Those worrying most tend to be the ones with records they’d be embarrassed to share far and wide,” Johnson noted. “Well-run industries like the fast lube industry don’t have a bunch of dirty laundry to worry about.”
More importantly, she noted, “electronic reporting will apply to so few in the fast lube industry that it’s very unlikely to have any noticeable effect on the industry at large. Moreover, the content of the reports required hasn’t changed.”
In fact, any employer already filing them on paper isn’t looking at a huge learning curve or having to buy new equipment either.
“The bigger story for non-large and non-high risk employers is the anti-retaliation rule that OSHA comingled with the electronic reporting rulemaking,” Johnson said. “That part applies to everyone.”
A bigger concern for shops of all sizes could be that OSHA’s update in how reporting is being handled also includes changes to other rule changes.
“In a lot of ways this is a Trojan horse,” warned Dreux, who called out a few key areas that might be of concern to employers.
These include issues related to drug testing, incentive programs and how rules for reporting affect workplace discipline.
“OSHA is against some drug testing following an incident and that seems to be somewhat controversial,” Dreux suggested. “OSHA also seems to think injuries are under-reported thanks to incentive programs that reward employees when there is a month without workplace injury or illness.”
While OSHA has always maintained it is there to ensure workers are not put in harm’s way, the concerns that it is overstepping may be legitimate.
“Ensuring state and federal agencies and departments stay within the parameters of their authority is always a valid concern,” Johnson said. “I’m not aware of OSHA exceeding its authority here, but large and high-risk category employers will likely make the case, should they find cause.”
Bigger Changes Coming
The final thing shop owners may want to consider is while for now the federal regulations may not be applicable, there could be other changes coming down the line.
This includes changes to the state plans.
“Within six months after publication of this final rule, ‘State Plan’ states will have to adopt requirements that are substantially identical to the requirements in this final rule,” Johnson explained. “Some states may choose to allow employers in their state to use the federal OSHA data collection website to meet the new reporting obligations. Other states may provide their own data collection sites. OSHA will provide further information and guidance as the States decide how to implement these new reporting requirements.”
The other issue will be where the next administration in Washington opts to take this.
“The new administration could dramatically change the rules not only for reporting; as in the past few years there has been a move toward more enforcement by OSHA,” said Steve Parascandola, a leading environmental, health and safety attorney in North Carolina. “It wouldn’t surprise me if you see more OSHA control over more than rules in the coming years.”