By Andrew Sommer, Megan Shaked, and Dan Deacon
As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).
When federal OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication. Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration. As a result, numerous State OSH programs failed to initially adopt the rule. After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.
Delinquent State Plans Began Adopting E-Recordkeeping
In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon. While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:
Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction. Specifically, on April 30, 2018, federal OSHA issued a press release announcing that employers in all State Plan States (not the State agencies themselves) must implement OSHA’s E-Recordkeeping Rule. While employers were not required to submit 300A data and faced no enforcement risk for not doing so, federal OSHA’s demand did resonate with delinquent State Plan administrators.
Shortly after federal OSHA’s April 30, 2018 press release, some of the delinquent states quickly moved to adopt the E-Recordkeeping Rule, including Minnesota, South Carolina, and Utah. South Carolina, even implemented a catch-up provision because the rule was finalized so close to federal OSHA’s July 1, 2018 submission deadline – instead requiring employers submit 2017 300A data by November 25, 2018. Utah, on the other hand, passed on submission of 2017 300A data and simply required employers to comply with the upcoming March 1, 2019 deadline to submit 2018 300A data.
Heading into 2019, however, there are still three State Plans that have declined to adopt the Rule – Maryland, Washington, and Wyoming. Therefore, unless one of these State Plans adopts the rule prior to the March 2, 2019 deadline to submit FY2018 300A data, covered establishments in those states are still not required to submit 300A data.
California: Dec. 31, 2018 Deadline to Submit 2017 300A Data Approaching
California did finally adopt an E-Recordkeeping Rule of its own, tracking the federal OSHA E-Recordkeeping Rule. On September 19, 2018, California Governor Jerry Brown signed California Assembly Bill 2334 (“AB 2334”) largely in response to fed OSHA’s recent proposal to eliminate the requirement for large employers to submit 300 Log and 301 Incident Report level data.
Then, approximately one month later on October 18, 2018, Cal/OSHA published an emergency proposed regulation intended to temporarily adopt and implement the federal OSHA E-Recordkeeping Rule’s data submission requirements. The Cal/OSHA emergency regulations were approved by the California Office of Administrative Law and officially went into effect on November 1, 2018.
The regulations amend Title 8 of the California Code of Regulations sections 14300.35 and 14300.41. However, since the California regulations were approved as emergency regulations, Cal/OSHA will now proceed with the formal rulemaking process.
Who must submit injury data?
Covered establishments are required to submit 300A data through federal OSHA’s ITA portal by the deadlines specified in the emergency regulation. The following workplaces are covered by the rule:
When Must Covered Establishments Submit 300A Data?
The first deadline under Cal/OSHA’s emergency regulation is approaching soon, and covered establishments should take immediate steps to ensure they comply with the rule’s requirements. Similar to South Carolina, California imposed a “catch-up” provision to collect FY2017 300A data even though the rule was adopted after federal OSHA’s deadline for 2017 data. Specifically, covered establishments in California must submit FY2017 300A data by December 31, 2018. Covered establishments also have a short turnaround time to submit FY2018 300A by March 2, 2019.
Next Steps for Employers
Covered establishments should follow the instructions set forth on federal OSHA’s Injury Tracking Application website to set up an account and account. Covered establishments should promptly review their 2017 300A data to ensure that it is accurate and ensure that a designated company representative is familiar with the ITA portal and prepared to submit the data by the initial December 31st deadline.
Employers should also stay tuned for further rulemaking to determine if Cal/OSHA amends the current rule in the near future. AB 2334 requires Cal/OSHA to “monitor” rulemaking at the federal level and, if Cal/OSHA determines that fed OSHA has “eliminated or substantially diminished” the electronic recordkeeping rule, the California agency is required to convene an advisory committee within 120 days to “evaluate how to implement the changes necessary to protect the goals” of the proposed federal rule as issued in May 2016 under the Obama Administration. Thus, Cal/OSHA did not rule out the possibility of imposing its own requirements – perhaps more stringent than those required by federal OSHA.
Cal/OSHA Resurrects Obama-era Recordkeeping Statute of Limitations Rule
In other injury and illness recordkeeping news, AB 2334 goes even one step further by resurrecting a former controversial Obama-era safety and health rules. Notably, the Bill includes a provision that impacts the statute of limitations for issuing recordkeeping citations. Despite the D.C. Circuit’s decision in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) and the Cal/OSHA Appeals Board decision in Key Energy Services (DAR-15-0255-0256), which held that Cal/OSHA cannot cite employers for failing to record injuries and illness if the violation took place more than six months before the citation was issued, AB 2334 seeks to establish recordkeeping violations as continuing violations, so as to expand the statute of limitations for such violations for the entire five-year period the record must be kept:
A citation or notice shall not be issued by the division more than six months after the occurrence of the violation. For purposes of issuing a citation or notice for a violation of subdivision (b) or (c) of Section 6410, including any implementing related regulations, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Nothing in this paragraph is intended to alter the meaning of the term “occurrence” for violations of health and safety standards other than the recordkeeping requirements set forth in subdivision (b) or (c) of Section 6410, including any implementing related regulations.
This is a major shift back to the Obama Administration’s midnight “Volks Rule,” where fed OSHA adopted a five-year statute of limitations for recordkeeping violations during the final days of the Obama Administration. The federal rule was repealed quickly by the Trump Administration when the Republican Congress and new President Trump signed a resolution to revoke the rule under the Congressional Review Act.