Your OSHA 300 Log and Compliance Just Got More Complicated Thanks to this New Recordkeeping Rule

In 2013, OSHA proposed an electronic recordkeeping rule which would require large employers to report recordable workplace injuries online—directly to OSHA. The new proposed rule was the subject of much debate as well as a couple of federal lawsuits brought against OSHA by employer groups. As a result of legal activity, implementation of the new rule was delayed.

However, this new recordkeeping rule finally did go into effect in December of 2016, with the first electronic reporting of workplace injuries slated for 2017 for certain employers. This means that it is incredibly important for you to understand this new rule and how it affects your small business, especially when it comes to things like the OSHA 300 log and similar compliance and reporting forms.

New Controversial Requirements

The new rule contains some controversial requirements for employers that must be met:

  1. Employers must inform their employees of their right to report workplace injuries and illnesses without fear of retaliation on the part of their employer.
  2. Employers must develop and implement a workplace injury and illness reporting procedure that is “reasonable” and that does not place undue hardship on employees.
  3. The new rule contains stiff penalties for employers who retaliate against employees who report workplace injuries or illnesses.
  4. Beginning in 2017, employers with more than 250 employees must submit forms OSHA 300 Log, 301 Log, and 300A Log electronically, directly to OSHA.
  5. Employers with 10-249 employees in certain designated industries (such as construction) must begin submitting form 300A directly to OSHA.
  6. Upon notification from OSHA, certain employers must submit electronically forms 300, 301, and 300A regardless of their total number of employees.

The new rule does not change the reporting and recording criteria previously established by OSHA. Workplace injuries and illnesses must be recorded and retained according to OSHA rules and regulations.

Cost to Employers

There are significant costs connected to the new reporting and recordkeeping rule. It has been estimated that employers must bear:

  • Approximately $15 million in expenses annually due to the requirements of the new rule.
  • Approximately $7 million in submission costs for employers with more than 250 employees.
  • Approximately $4.6 million in costs for employers with 20-249 employees are expected.
  • An estimated additional $8 million spent by employers for nondiscrimination requirements.

Exposure to Public

Another part of the new recordkeeping and reporting rule that has raised the hackles of employers is the fact that all collected data fields from the forms OSHA 300 Log, 301 Log, and 300A Log will be made available to the general public online. The one exception is that the data collected will not contain the name of the injured worker. As with most government data, a Freedom of Information Act request form will be required to gain access to data collected.

OSHA 300 Log: Log of Recordable Incidents

Employers would do well to be cautious when filling out the information blanks on their OSHA 300 Log. Precise and intentional wording is highly recommended.

OSHA 301 Log: Incident Report

Only data in fields 10-18 will be published online. There supposedly will be no data collection or publication of employee name, address, treating physician, or healthcare provider information.

OSHA 300A Log: Annual Summary

All collected data fields will be made available. The summary does not contain personally identifiable information. All information will be released in response to a Freedom of Information Act request.

Complications with the Rule

Perhaps the most contentious portion of the new recordkeeping and reporting rule is found in the preamble to the rule itself. The anti-discrimination language in the preamble prevents employers from using post-accident drug testing as a form of inverse action against an employee. Post-accident drug testing can only be done “where drug use is likely to have contributed to the accident and for which the drug test can accurately identify impairment caused by drug use.”

Since the Drug and Alcohol Free Workplace Act was passed in the 1980s, employers have used post-accident drug and alcohol testing as a means of determining whether the presence of an illegal drug or alcohol could have been the proximate cause of a workplace injury. None of the currently available drug tests can determine impairment of an individual. All of the currently available tests measure the amount of illegal drug or alcohol in the injured worker’s system. Limits on the amount are at the “minimum detectable level”.

The anti-retaliation language in the preamble has effectively gutted the practice of routine post-accident drug or alcohol testing for workers injured on the job. This runs afoul of several state rules which make a positive post-accident drug or alcohol test the proximate cause of the injury. In Texas for example, a positive post-accident drug or alcohol test can free a workers’ compensation carrier from liability beyond the initial treatment and evaluation of the injured worker.

Impact on Small Businesses

A federal lawsuit filed in the northern district of Texas sought to stop enactment of the new recordkeeping and reporting rule. The federal judge assigned to the case dismissed a request for an injunction to halt implementation because he found that “employers would not be significantly impacted” by its implementation. The lawsuit itself is ongoing. If the plaintiffs (employers) prevail, the new rule may be withdrawn or significantly impacted.

What’s all this have to do with your small business? More than you might think!

Small to medium employers have enough to worry about just keeping the doors open and the bills paid. Most cannot afford to hire an additional employee just to maintain and electronically file the required OSHA documents.

Aligning with a Professional Employer Organization like Employers Resource can take the OSHA recordkeeping headache off your plate. Employers Resource maintains the OSHA logs for all our clients. We present the OSHA 300A Summary to each client required to post the document in plenty of time for the required February 1 to April 30 posting requirements.

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