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Employers will be relieved, at least temporarily, to learn that the requirement to file injury information through an electronic recordkeeping system that was scheduled to take effect this July 1 has been delayed. The Occupational Safety and Health Administration (OSHA), which had issued a rule requiring the posting of such information for most employers in May 2016, announced yesterday that the filing deadline will be postponed for an undetermined period of time.
Delay Expected But Details Not Yet Forthcoming
Many had expected the Trump administration to delay implementation, or Congress to deny funding to the program, so this news does not necessarily come as a surprise. What is unknown at this point is the exact rationale for the delay and when a new deadline will be set (if at all). No further information has been forthcoming about the rule or the delay, however, presumably because we only just recently gained a Secretary of Labor and we still do not have a new Director of OSHA or deputies in place.
Although the filing deadline is just six weeks away, it was telling that the agency had not yet even provided the online portal for employers to begin collecting and submitting the information required (the previous calendar year’s recordable injury and illness cases and rates for each workplace).
What The Rule Would Have Done
It is important to remember that electronic recordkeeping rule would not have created new obligations in terms of reporting. Those employers covered by the new rule would have been asked to simply use data from their OSHA Forms 300, 300A, and 301 when using the electronic reporting method. However, OSHA was prepared to electronically post injury and illness data on its website from all workplaces with 20 or more employees and for those in certain high-risk industries, making the information publicly available for consumption by unions, plaintiffs’ attorneys, and others. Submission was to be phased in based on employer establishment size and industry.
Although the Obama administration interpreted new anti-retaliation provisions in a manner that has significant effects on automatic post-accident drug testing, safety incentive plans, and injury reporting procedures, there is no word yet on whether these agency pronouncements will also change.
What’s Next
We will be in a better position to understand the future of the rule once Labor Secretary Alexander Acosta settles into his new role, and once an OSHA Director is in place. One would expect that the agency will announce its intentions with respect to the new rule in the coming months. Several employer groups had been requesting that the Trump administration reopen the rules making process to consider changes to the rules, and such an option could possibly be on the table.
It would not be surprising to see unions or other worker advocacy groups bring legal challenges to force OSHA to meet the July 2017 implementation date. A collection of groups had already been waging a media campaign supporting the new rule. Just today, in fact, the former Assistant Secretary of Labor for OSHA under President Obama complained that the decision to delay the rule was made for political purposes and was not technical in nature.
Also, although two federal court lawsuits are pending challenging the new rule (including one filed by the U.S. Chamber of Commerce), several unions and worker advocacy groups have already petitioned the court to step in and defend the rule now that the new administration seems to be taking a more hands-off approach to defending Obama-era regulatory actions. The fate of any such legal challenges is difficult to predict at this point, but what is certain is that we have not yet heard the last of this issue.
