By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just been sued for removing the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A coalition of groups including the Public Citizen’s Health Research Group (PCHRG), American Public Health Association, and the Council of State and Territorial Epidemiologists filed a complaint against the U.S. Department of Labor and its Occupational Safety and Health Administration.  PCHRG v Acosta, No. 19-CV-166, (D. D.C. January 25, 2019).  The lawsuit challenges OSHA’s decision to amend a 2016 rule on the “Tracking of Workplace Injuries and Illnesses” to remove the requirement that businesses with 250 or more workers electronically submit logs of each on-the-job injury or illness their workers sustain, although these employers must still keep such records on site.

We had recently blogged about OSHA’s just issued final rule (the Rollback Rule) to remove the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 and OSHA Form 301 to OSHA each year.  Under the now amended rules these establishments will still be required to electronically submit information from OSHA Form 300A. 84 Fed. Reg. 380 (January 25, 2019).

The PCHRG suit claims that the Rollback Rule should be declared “unlawful and set aside because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”  According to the lawsuit, “OSHA’s action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Under the current rules, the deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisBenjamin D. Briggs, Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued its final rule that removes the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). 84 Fed. Reg. 380 (January 25, 2019).

In May 2016, under the Obama Administration, the Department of Labor issued a final rule that would have required companies with 250 or more employees to electronically submit their OSHA 300, 301 and 300A forms annually. The information, which would contain summaries of employee names and injuries, would be maintained on government computer systems, but could be requested by third parties such as labor unions, special interest groups, or even competing companies who have an interest in such information.

In light of the legitimate worker privacy concerns, OSHA, under the Trump Administration, in July 2018, issued a proposed rule that would narrow the electronic disclosure rule.  However, some special interest groups, comprised of public-health advocacy groups, viewed the information contained in employers’ OSHA forms as a valuable source of workplace health data.  As such, these groups previously sued to reinstate the final rule that required employers to submit OSHA 300 and 301 forms electronically.  A federal court recently denied that request.

The court in Pub. Citizen Health Research Grp. v Acosta, No. 1:18-cv-01729, 2018 BL 459531 (D.D.C. Dec. 12, 2018), reasoned that the interest groups would have to show “irreparable harm” by not being able to access the OSHA forms to succeed in their lawsuit.  They were unable to show “irreparable harm” because OSHA has issued a notice of proposed rulemaking that narrows the electronic disclosure rule, but could change their mind and ultimately require employers to submit the forms electronically.  As such, the court reasoned, such groups could potentially obtain such information in the future.  Further, the court stated that OSHA’s delay in accepting the OSHA forms does not prevent the special interest groups from conducting the same type of workplace safety research independently.  Because they are not “irreparably” harmed by OSHA’s actions, the Court denied the relief they sought.

Revised Electronic Reporting Requirement

OSHA’s January 25, 2019 final rule limits the electronic submission requirement to the 300A summary for establishments who are required to keep OSHA records and with 250 or more employees.  Establishments with 20 or more (but fewer than 250) employees in certain specified industries (in Appendix A to the regulation) must also submit form 300As.

OSHA believes that this final rule will better protect personally identifiable information or data that may be re-identified with a particular worker by removing the requirement for employers with 250 of more employees to submit their information from Forms 300 and 301 electronically. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

We have blogged frequently on OSHA’s electronic reporting rule.  See California Enacts New Record-Keeping Mandates in Response to Changing Federal Program, Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

The deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

By Joshua M. HendersonIlana R. MoradyJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On November 6, 2018, the California Office of Administrative Law approved Cal/OSHA’s emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  Covered employers will be required to submit their Forms to Federal OSHA by December 31, 2018.

As we previously blogged, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline is December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms will need to be submitted by March 2, 2019.

Covered employers in California should submit their 300A summaries by following the instructions on federal OSHA’s Injury Tracking Application webpage.

Although the formal rulemaking process needs to be finalized before the emergency regulations are permanent, including a public comment period and public hearing, employers should plan to meet the upcoming December 31, 2018 deadline.  See any significant changes to the requirements summarized above.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Joshua M. HendersonIlana R. MoradyJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: CalOSHA published a news release TODAY, on a new emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  CalOSHA submitted the rule yesterday, and will allow public comments until Tuesday, October 30th, with the intention of adopting it as final by November 5th!

According to CalOSHA, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline would be December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms would be submitted by March 2, 2019.

Cal/OSHA submitted the emergency regulation amending recordkeeping sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations to the Office of Administrative Law (OAL) on October 25.  Interested persons have until “October 30 to submit comments on the proposed emergency regulation.” OAL will have until November 5 to review and adopt or deny the proposed regulation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By: Brent I. ClarkJames L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth SynopsisThe Occupational Safety and Health Administration (OSHA) has initiated a Site-Specific Targeting 2016 (SST-16) Program using the injury and illness information electronically submitted by employers to initiate OSHA inspections.  OSHA Directive No. 18-01, CPL 02, effective October 16, 2018.

In its news release about the Site-Specific Targeting 2016 Program, OSHA indicated that it “will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.”  The agency will then perform comprehensive inspections of employers who are selected for Program.  For CY 2016, OSHA required employers to electronically submit Form 300A (Summary of Work-Related Injuries and Illnesses) by December 15, 2017. The deadline for submitting the 300A data for CY 2017 was July 1, 2018, though OSHA indicted that employers may still provide this information to the database.

The SST-16 indicates that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.”  The inspection cycles are generated using software that randomly selects the establishments from among those that fall into the categories above. According to OSHA, the purpose of including non-responding employers on the inspection list is to deter employers from failing to report their injury and illness information in order to avoid inspection.  Similarly, OSHA will select a sample of low DART rate establishments to verify the reliability of the 300A data being submitted to the agency.  The scope of the inspection will be comprehensive, and not simply limited to recordkeeping practices or potentially hazardous areas or operations that caused an elevated DART rate.  Employers who have received a comprehensive safety or health inspection within 36 months of the creation of the SST-16 inspection list will not be inspected again.

Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses, will be required to electronically submit their 300A forms to OSHA each year by March 2.

In the SST-16, OSHA clearly lays out how the agency plans to use the injury and illness data it now electronically collects from employers.  Given the tangible impact the data will have on programmed OSHA inspections, employers are advised to take a proactive approach to monitor and address patterns in their injury and illness rates and should take care to ensure they are submitting accurate records to OSHA.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Joshua M. HendersonIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.

A six-month statute of limitations period currently applies to all citations issued under Cal/OSHA. Assembly Bill 2334 will allow the California Division of Occupational Safety and Health (Cal/OSHA), starting January 1, 2019, to cite employers for injury and illness record-keeping violations “until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In theory, the six-month limitation period could, depending on the circumstances, extend up to the five years that employers must maintain injury and illness records.  The limit firmly remains six months for federal OSHA.  See OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years.

The new law also may require the state to establish an advisory committee to determine whether employers should be required to file copies of their workplace injury and illness (WII) records with the state.

The law’s provisions leave many questions to be determined.  For example, if federal OSHA drops the requirement for employers to electronically file summaries of each injury with the Agency, would the committee recommend Cal/OSHA require employers to file with the state, instead?  It may well be quite a while before the committee is even created, much less makes recommendations to Cal/OSHA because the committee would conceptually be formed after federal OSHA loosens current filing requirements.

The bill appears to be a direct reaction to the Trump administration’s efforts to roll back record-keeping mandates set during the previous administration. Under the Obama administration, federal OSHA established a 5-year limit for record-keeping violations, however that limit was set aside by a congressional resolution signed by President Trump. The Trump Administration also substantially diminished employer obligations to electronically submit injury and illness data to federal OSHA.

We have frequently blogged on the contentious federal WII Rule.  See Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsAll State Plan Employers are Now Required to Electronically File 2017 Form 300A DataOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301.  OSHA is amending provisions of the “Improve Tracking of Workplace Injuries and Illnesses” (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA).  83 Fed. Reg. 36494 (July 30, 2018).

OSHA, in its Notice of Proposed Rulemaking (NPRM), has “preliminarily determined” that the risk of disclosure of information contained in OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), the costs to OSHA of collecting and using the information and the reporting burden on employers are “unjustified given the uncertain benefits of collecting the information.”  The proposed rule eliminates the requirement to file the Form 300 and 301 for establishments with 250 or more employees.  These large employers will still be required to electronically file the OSHA 300A summary of work-related injuries and illnesses. OSHA submits that this proposed change will maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

We had blogged previously on the WII Rule.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A DataOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule..

In the proposed rule, OSHA notes that Form 301 requires the collection of sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent.  “While some of the information is likelier to be regarded as particularly sensitive—namely, descriptions of injuries and the body parts affected—most of the form’s questions seek answers that should not be lightly disclosed, including:”

  • Was employee treated in an emergency room?
  • Was employee hospitalized overnight as an in-patient?
  • Date of birth?
  • Date of injury?
  • What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific.
  • What happened? Tell us how the injury occurred.
  • What was the injury or illness? Tell us the part of the body that was affected and how it was affected; be more specific than “hurt,” “pain,” or “sore.”
  • What object or substance directly harmed the employee?

In the May 2016 final rule (81 Fed. Reg. 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually.  Individual injury and illness case information from these forms could be disclosed to third parties pursuant to FOIA requests from the public, thereby endangering worker privacy.  The NPRM proposes to amend OSHA’s new electronic recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301, to protect sensitive worker information.  OSHA also admits that it has not devised a plan for how it would “collect, process, analyze distribute, and programmatically apply” this information in a meaningful way to justify its collection.

OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure.  Comments, due on September 28, 2018, may be submitted to docket number OSHA-2013-0023.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

Seyfarth Synopsis: This morning our panel from Seyfarth’s Workplace Safety team led a briefing on OSHA regulation and enforcement under the Trump Administration. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel addressed recent developments and trends our Group has seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel also discussed:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel discussed practical tips to guide employers in this new regulatory environment.

If you were able to attend, thank you very much.  If not, see you next time. Either way, here are our presentation slides. Feel free to contact us if you have any questions on the materials.

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

Seyfarth Synopsis: On Tuesday, May 15, 2018, a panel from Seyfarth’s Workplace Safety team will lead an interactive Breakfast Briefing on OSHA regulation and enforcement. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel will address the new developments and trends we have seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel will also discuss:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel will discuss best practices for managing an OSHA inspection, with practical tips to guide employers in this new regulatory environment.  To register for the Breakfast Briefing, follow the link below.

Tuesday, May 15, 2018
8:00 a.m. – 8:30 a.m. Breakfast & Registration
8:30 a.m. – 10:00 a.m. Program

Seyfarth Shaw LLP
233 S Wacker Dr., Suite 8000
Chicago, IL, 60605

Register Here

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

By Andrew H. Perellis and Craig B. Simonsen

The U.S. Environmental Protection Agency has just announced its Final Fiscal Year 2014-2018 EPA Strategic Plan (April 10, 2014). We had previously blogged about the Draft Strategic Plan.

According to EPA’s Administrator, Gina McCarthy, “EPA will address the increasingly complex array of environmental challenges we face by advancing a rigorous research and development agenda that informs and supports our policy and decision making with timely and innovative technology and sustainable solutions.” “We are heeding President Obama’s call for action on climate change, the biggest challenge for our generation and those to come by building strong partnerships at home and around the world. We are working to mitigate this threat by reducing carbon pollution and other greenhouse-gas emissions and by focusing on efficiency improvements in homes, buildings and appliances.”

EPA’s five strategic goals include:

  • Addressing climate change and improving air quality;
  • Protecting America’s waters;
  • Cleaning up communities and advancing sustainable development;
  • Ensuring the safety of chemicals and preventing pollution; and
  • Protecting human health and the environment by enforcing laws and assuring compliance.

A focus of the Strategy is EPA’s new “Next Generation Compliance” paradigm, meant to improve compliance and reduce pollution. According to the Agency, Next Generation Compliance “takes advantage of new information and monitoring technologies to enable EPA, states, and tribes to get better compliance results, and tackle today’s compliance challenges.” Draft Strategic Plan, page 42.

EPA’s Next Generation Compliance supports EPA’s new “E-Enterprise initiative” by “promoting electronic reporting, advanced monitoring, and transparency.” In fact, the Agency posits, “this initiative will move us from using paper to electronic transactions, increase the use of advanced monitoring technologies to obtain better, more complete information on environmental conditions and pollution sources, and deliver data that is transparent, readily available, and understandable to EPA, the states, and the general public. Through E-Enterprise, the entire environmental protection enterprise (federal, state, local, and tribal partners) will be able to regularly conduct two-way business electronically in an integrated way, reducing costs while enhancing environmental protection.” Page 64.

EPA’s Next Generation Compliance paradigm is focused on five areas:

  1. Designing regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes.
  2. Using and promoting advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see quantified pollutant discharges, environmental conditions, and noncompliance.
  3. Shifting toward electronic reporting by regulated entities so that we have more accurate, complete, and timely information on pollution sources, pollution, and compliance, saving time and money while improving effectiveness and public transparency.
  4. Expanding transparency by making the information we have today more accessible, and making new information obtained from advanced emissions monitoring and electronic reporting more readily available to the public.
  5. Developing and using innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance.

Page 69-70.

Obvious in this Strategy is the Agency’s steady movement toward requiring that regulatory filings be both filed electronically AND immediately accessible to the public. We have blogged on the Agency’s work to enable this sort of electronic reporting, such as in its waste e-manifest rulemaking and its Clean Water Act e-filing rulemaking. These sorts of electronic reports and data filings, if readily accessible to the public, may well end up bringing continuous scrutiny to regulated entities, and likely will bring and facilitate more citizen law suits. As such, regulated entities should review their policies, procedures, and training programs to ensure their facilities and processes are in constant compliance.