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Say Goodbye to 2016 and Hello to New OSHA Requirements

Although the standard New Year’s commitment of going to the gym is usually forsaken within a week, two new OSHA rules taking effect in January 2017 are resolutions that employers will want to make sure they keep. The first rule, which takes effect January 1, requires certain employers to electronically submit illness and injury records to OSHA annually.1 The second rule, which takes effect January 18, makes clear that an employer’s duty to maintain accurate records of injuries and illnesses continues beyond the initial reported incident.

Under the electronic reporting rule, any establishment with 250 or more employees that is required to keep OSHA injury and illness records must electronically submit to OSHA all information on its injury and illness recordkeeping forms (Forms 300, 300A, and 301). Second, establishments with between 19 and 250 employees must electronically submit to OSHA information from their annual summary (Form 300A), if those employers work in “certain designated industries.” The list of designated industries is substantial, and includes, but is not limited to: agriculture, construction, general and specialized freight trucking, manufacturing, utilities, warehousing and storage, and wholesale trade.

OSHA plans to provide a website, scheduled to launch in February 2017, where employers can electronically submit this information. The first reporting deadline is July 1, 2017; however, employers need only submit information from their annual summary (Form 300A) at that time. The second reporting deadline is July 1, 2018, whereupon employers must submit all required information. In 2019 and beyond, the annual reporting deadline will be March 2. And what will OSHA do with this information? Per the final rule, the agency “intends to post the establishment-specific injury and illness data it collects under this final rule on its public Web site.” Thus, in addition to the tediousness of electronic submission, employers are faced with the prospect of having every recorded injury and illness laid bare across the Internet.

Although OSHA trumpets the second new rule, which takes effect on January 18, as an extension of the status quo, employers would be wise not to overlook it. The rule amends OSHA’s recordkeeping regulations to state that an employer’s duty to record an illness or injury “continues for as long as the employer must keep records of the recordable injury or illness,” and “does not expire just because the employer fails to create the necessary records when first required to do so.” In other words, according to OSHA, because recordkeeping violations are continuous, it can cite employers for such violations up to six months after the five-year record retention period expires. The concern with this is readily apparent: Due to improper reporting through the intervening years, an employer can receive a citation for an incident that occurred as many as five years prior. As a result, now more than ever, employers should ensure they are properly recording all injuries and illnesses, both at the time of the injury and afterward.

1 Additionally, this rule requires employers to inform employees of how to report job-related illnesses and injuries; that portion of the rule took effect on August 10, 2016.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.