OSHA’s new record-keeping rule eases paperwork, fails to address employer issues

By Mary Ann Magnell | Aug 10, 2018

The Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) July 30 that will minimize paperwork and administrative burdens for some businesses, but may not address many employers’ issues with current regulations passed in 2016.

WASHINGTON -- The Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) July 30 that will minimize paperwork and administrative burdens for some businesses, but may not address many employers’ issues with current regulations passed in 2016.

According to Washington, D.C., attorney John Martin, the new OSHA measures has “left everyone disappointed.” This is because the measures did not address issues raised with the 2016 amendments, which resulted in lawsuit challenges that were filed in federal courts in Oklahoma City and Dallas shortly after OSHA passed them.  

One of these issues included a contested amendment that allowed OSHA to “issue citations for employee whistleblower discrimination or retaliation without a complainant and without regard for Section 11(c)’s requirement that whistleblower complaints be filed by a complainant within 30 days of an adverse action.”

The Obama administration “was frustrated by the whistleblower investigations,” said Martin, an attorney with the firm of Ogletree, Deakins, Nash, Smoak & Stewart. It felt that 30 days did not allow sufficient time for employees to file complaints, and that “whistleblower activity was rampant," and companies were getting away with retaliation by allegedly hiding behind the limits of the statute. However, the time could not be extended because the deadline was “statutory,” he said 


John F. Martin   Ogletree Deakins

The new rules also did not address certain concerns, such as post-accident drug testing programs in which OSHA, according to Martin, “suggested that post-accident drug testing policies and safety incentive programs may be ‘unreasonable’ and discourage people from reporting injuries and illnesses.” There was no data to support these claims he said. Additionally, studies have been performed on “safety incentive programs,” and these programs have been shown to “improve reporting.”

It is uncertain at this time whether or not the two lawsuits, which were either stayed or administratively closed, will resume their litigation in the future.

Although business owners and other observers may be disappointed by the proposed rules, the current proposed rules did eliminate the need for companies with more than 250 employees to electronically file the detail-intense 300 and 301 logs, which will ease administrative work and addresses some, but not all, privacy concerns.

These logs, which were required to be filed when a worker was hurt on the job, tracked a number of patient-centered details and contained “personally-identifiable information,” according to Martin. They included a summary of each accident, how an individual was injured, how they were treated and more. 

These logs and their details were at the heart of privacy concerns.

“In the original rulemaking,” Martin said of the 2016 measures, “OSHA announced that any record-keeping logs filed with the agency would be made public.” The Trump administration has “backpedaled” from this statement. However, Martin said the proposed rule change “does not formally withdraw the previous statement.”  

The new record-keeping rules “eases some privacy concerns,” Martin said. It also eases the paperwork burdens for certain companies. Although the administrative requirements for more intensive, detailed 300 and 301 logs have been lifted for many companies, the smaller 300A summary must still be e-filed annually. 

Further, Martin added that some “employers maintain that 300A summaries also contain private or confidential information. So, for some employers, the idea of their 300As being made public is unsettling.” 

 

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Ogletree, Deakins, Nash, Smoak and Stewart, P.C. U.S. Occupational Safety and Health Administration

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