In 2016, the federal Occupational Safety and Health Administration (OSHA) amended its injury and illness recordkeeping and reporting rule to require certain employers to electronically submit this information to OSHA via OSHA’s online web portal. OSHA’s decision to go digital left employers confused about their obligations under the new rule. The new rule raised questions about who needed to report, what needed to be reported and when it needed to be reported. For California employers, those questions were definitively answered last month when Cal/OSHA’s emergency action proposal to require California employers to electronically report summary injury and illness data to OSHA by December 31, 2018 was approved.
A Brief History of the Federal Electronic Reporting Rule
For over two years, OSHA has been fine-tuning regulations requiring certain establishments to electronically submit their workplace injury and illness records via OSHA’s Injury Tracking Application (ITA) web portal. The process began in 2016 when OSHA issued a new rule requiring establishments with 250 or more employees, and establishments with 20-249 employees in certain high-risk industries, to use the ITA to report injury and illness data from their OSHA Form 300A beginning July 1, 2017. The rule provided that establishments with 250 or more employees were required to electronically report data from Form 300A as well as OSHA Forms 300 and 301 beginning July 1, 2018. The rule required employers in both categories to electronically submit their recorded illness and injury data annually commencing on March 2, 2019. These reporting requirements applied to employers in federal OSHA jurisdiction. Employers in State-Plan states were advised to follow home rule.
Glitches in the Electronic Reporting Agenda
OSHA’s electronic reporting rule had a rough start. Covered employers and employee advocates raised concerns about the ITA reporting system and about OSHA’s intent to publicly post the injury and illness data on its website. Lawsuits were filed. There were technical problems with the ITA. OSHA postponed the reporting deadline several times and then decided to collect only OSHA Form 300A data from affected establishments, not data from Form 300 or 301. Then, OSHA issued a proposed rule to rescind certain provisions of the electronic reporting rule. Even now, OSHA is collecting data while that proposed rule is being considered.
Cal/OSHA Electronic Reporting Regulations
Initially, OSHA’s electronic reporting rule gave states with their own State Plans six months to adopt rules substantially identical to OSHA’s electronic reporting rule. Most states complied. California was among seven State-Plan states that failed to adopt conforming regulations within the six-month adoption window.
At first, Cal/OSHA informed California employers they were not required to follow the federal electronic reporting requirements until state rules were adopted. Six months later, OSHA officially announced that employers in delinquent State-Plan states were not required to submit their injury and illness data via the ITA. However, in a “trade release” several months later OSHA reversed, announcing that employers in State-Plan states were required to electronically submit their Form 300A data, even if the State Plan had not completed adoption of its own state rule.
Following the trade release, Cal/OSHA advised employers to report their Form 300A data to OSHA electronically by July 1, 2018. That deadline didn’t stick either. On November 1, 2018, Cal/OSHA obtained approval of an Emergency Regulatory Action requiring California establishments with 250 or more employees, and establishments with 20-249 employees in certain high-risk industries, to submit electronically:
- 2017 Ca/OSHA Form 300Adata by December 31, 2018,
- 2018 Cal/OSHA Form 300A data by March 2, 2019, and
- Cal/OSHA Form 300A data every March 2 thereafter.
California establishments that have not already reported summary data are advised to submit their information by the December 31, 2018 deadline. In the meantime, Cal/OSHA has promised to commence the regular rulemaking process to adopt permanent electronic reporting rules that are at least effective as the federal standard. California employers can find more information about data reporting on Cal/OSHA’s website. Employers reporting Form 300A data should follow the instructions posted at OSHA’s ITA website: https://www.osha.gov/injuryreporting/index.html.