Guest Commentary
By Eric J. Conn and Dan C. Deacon; Mr. Conn is a founding partner of Conn Maciel Carey LLP in Washington, DC and Chair of the OSHA • Workplace Safety Group, and Mr. Deacon is an associate with the firm. The two recently wrote a WLF Legal Backgrounder on OSHA’s efforts to alter the E-Recordkeeping Rule and the further steps OSHA must take.
Ed. Note: This commentary originally appeared in Conn Maciel Carey LLP’s OSHA Defense Report and is reprinted with permission.
When the federal Occupational Safety and Health Administration (OSHA) promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans (i.e. state occupational safety and health agencies) adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by OSHA. Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from OSHA under the new Trump Administration.
Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule. Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (WY OSHA); and
- Vermont (VOSHA).
Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018. And that is when fed OSHA started to speak up.
OSHA’s April 30, 2018 Press Release
On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule. In the press release, OSHA states that it had determined that:
Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”
State Plan State Responses
The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive—falling into three categories:
- Advising employers in their states to submit their injury data before the July 1, 2018 deadline;
- Reporting that the states would be adopting an E-Recordkeeping Rule imminently, so employers should plan to submit their 2017 injury data this year; or
- Pushing back against fed OSHA’s call for employers in their states to submit data
OSHA’s press release and the conflicting responses from the State Plans caused significant confusion for employers. As we discussed in an earlier article, establishments in states that had not adopted an E-Recordkeeping Rule were not legally required to submit data, and there was no legal risk for declining to do so.
State Plan Action Following OSHA’s Press Release
Although establishments in State Plan states that had not adopted the Rule got another pass on submitting 300A data, fed OSHA’s April 30 press release did garner attention from State Plan administrators, and many of the still-delinquent states quickly moved to adopt an E-Recordkeeping Rule, including Minnesota, South Carolina, and Utah.
The only States that have still not adopted it are California, Maryland, Wyoming, and Washington. Currently, the Washington Division of Labor & Industries website still states that:
“Employers in Washington are still NOT required to electrically submit data to OSHA’s new Injury Tracking Application, despite a recent announcement from OSHA.”
The Maryland Department of Labor, Licensing, & Regulation has not adopted the Rule. Its website still says:
“The State of Maryland has not yet adopted OSHA’s new electronic reporting requirements found in 29 CFR, Part 1904 of the OSHA Recordkeeping Regulation. As such, Maryland employers are under no legal obligation to register and/or submit their OSHA 300 information to OSHA via OSHA’s Injury Tracking Application (ITA). Additionally, the Maryland Occupational Safety and Health Agency is not accepting OSHA 300 log data at this time.”
Similarly, Wyoming OSHA has a notice to employers on the Department of Workforce Services website stating:
“The electronic reporting requirement does not apply to Wyoming OSHA covered employers, despite an April 30, 2018, OSHA news release stating all employers across the country are subject to the rule.”
However, WY OSHA has taken steps to formally adopt the Rule. WY OSHA filed a proposed rule with the Secretary of State’s office on April 20, 2018 and accepted public comments through June 4, 2018. The WY OSHA Commission is expected to vote on adopting the Rule soon.
California AB 2334 Sets Itself Apart
California has taken a different approach from those State Plans that formally adopted the Rule as-is and those that still have not. On September 19, 2018, California Governor Jerry Brown signed California Assembly Bill 2334 (“AB 2334”) to make various workplace safety and health changes to California law, which is 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.
AB 2334 appears to be taking steps to impose its own version of fed OSHA’s E-Recordkeeping Rule, including signaling a desire to maintain the requirement for large employees to submit 300 and 301 data. The California Bill 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.
AB 2334 goes even one step further to maintain former Obama-era safety and health rules. 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 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 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.
Therefore, California employers need to follow these new recordkeeping obligations and the potential additional requirements that may be in store if Cal/OSHA decides to go further.