OSHA Issues Final Rule Rescinding Certain Recordkeeping Requirements And Clarifying Guidance On Drug Testing And Incentive Programs

Author:Mr Thomas Metzger and Bryan M. Gramlich
Profession:Littler Mendelson

The Occupational Safety and Health Administration (OSHA) recently issued a final rule rescinding major portions of its electronic reporting rule. Specifically, the rule (1) amends the recordkeeping rules for employers with 250 or more employees; (2) further clarifies OSHA's position on post-incident drug testing and workplace incentive programs; and (3) reaffirms OSHA's position that certain injury and illness data can be used to expand the scope of an on-site inspection. The rule takes effect on February 25, 2019.

Electronic Submission of Injury and Illness Information

The Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq.) established workplace safety standards and delegated authority to the Secretary of Labor to enforce those standards. Among other provisions, the Act requires employers to record work-related injuries and illnesses on three separate OSHA forms. The OSHA Form 300 is a log of work-related injuries and illnesses. The OSHA Form 301 provides additional details about the injuries and illnesses on the 300 log. Finally, the OSHA 300A is a summary report of all work-related injuries and illnesses in a given calendar year.

In 2016, OSHA amended its rules to require establishments with 250 or more employees to electronically submit information from their OSHA 300, 300A, and 301 forms once a year. Establishments with 20 to 249 employees in certain industries were also required to electronically submit information on a yearly basis, but these employers only needed to submit information from the 300A summary form to OSHA. However, in July 2018, OSHA sought input on a proposed rule to eliminate the electronic submission requirement for employers with 250 or more employees with respect to information from the 300 and 301 forms.

After the comment period ended, OSHA determined that there was a meaningful risk of public disclosure of private employee information if the rule requiring electronic submission of the information in Forms 300 and 301 was kept in place. OSHA weighed this risk against the uncertain, incremental benefits to workplace safety if OSHA were to continue to electronically collect the injury and illness data. OSHA also considered that collection of the Forms 300 and 301 data was diverting agency resources from analyzing the information to which OSHA already has access, including severe injury reports, and 300A data from employers with over 20 employees. OSHA determined that the data contained in...

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