Employment Law Alert: February 4, 2019

OSHA Record-Keeping Rule Change

Last week, OSHA published a Final Rule to amend its 2016 Record-keeping regulation. Most significantly, OSHA eliminated the requirement for certain establishments to electronically submit information from the OSHA Form 300 and OSHA Form 301 directly to OSHA (Oregon OSHA uses Form 801 versus OSHA Form 301).  This is a reversal of an Obama-era requirement that mandated these records be submitted by employers with over 250 employees as well as employers in high hazard industries with 20 – 249 employees.

While OSHA had procedures in place to de-identify data, legal challenges were raised due to potential exposures through a Freedom of Information Request, or through a website security breach.  OSHA determined the enforcement-related benefit of access to this additional data did not outweigh the privacy and security risks.

Why was this change made?
Concerns over employee privacy were the primary basis for the rule change as Forms 300 and 301 contain detailed information about employees, including the employee’s title and date of birth as well as specifics of the illness and injury and the medical treatment received. 

While OSHA had procedures in place to de-identify data, legal challenges were raised due to potential exposures through a Freedom of Information Request, or through a website security breach.  OSHA determined the enforcement-related benefit of access to this additional data did not outweigh the privacy and security risks.

What else changed?
The final rule adds a requirement to include the Employer Identification Number (EIN) with 300A Form submissions. EINs will be required for 2019 data submitted in 2020.

In addition, OSHA has increased their maximum penalties for standards violations, effective January 23, 2019.  This was not part of the Final Rule but is a result of the Federal Inflation Adjustment Act of 2015, which requires Federal Agencies to adjust their penalties each year. 

What hasn't changed?
The requirement to maintain the Form 300 Log and Form 301 Report is still in place as well as the requirement to retain Forms 300, 300A and 301 records onsite for five years.

 No change has been made to the Form 300A posting or submission requirements.  

• These Forms must be posted in a prominent location for employee viewing each year between February 1 and April 30. 
• For establishments that are required to electronically submit data, the deadline for submitting 2018 data from Form 300A data is March 2, 2019.

The final rule does not change any of the anti-retaliation provisions in the 2016 Rule. These provisions were meant to discourage disciplinary actions for injury reporting and safety violations, as well as limit the employer’s ability to perform post-incident drug testing without cause.

Should we expect additional changes?
Stay tuned for additional updates in 2019! UEA will continue to monitor the status of OSHA’s 2016 Record-keeping Rule as legal challenges to multiple aspects of the Rule, including the Anti-Retaliation provisions, are not fully resolved.