A large number of employers who are not governed by the US Occupational Safety and Health Administration's electronic record keeping rule voluntarily submit information to the Agency, but they should refrain from doing so in the future as that information may be used against them in OSHA enforcement proceedings, according to lawyers representing employer.
The electronic register of the registry, formally known as the Regulations for the Improvement of Workplace Damage Tracking and Diseases, was adopted during the Obama administration. But in July, OSHA released a proposal to change the register for prosecution of 2017 by canceling the requirement for establishments with 250 or more employees to electronically submit information from the OSHA forms 300 and 301
OSHA received 215,381 forms 300A submissions 2016 – about 355,000 fewer posts than projected in the first year – and 259,764 Form 300A submissions 2017.
Several factors contributed to the lower than expected entries, including one "less than steady" expansion "of the Agency's electronic data collection portal and a potential security breach identified by the US Department of Homeland Security which forced the portal to close for a few weeks, Daniel Deacon, a Washington, DC-based associate in Conn Maciel Carey LLP's OSHA and Labor and employment groups, said during a webinar on Tuesday.
There was also confusion about the status of the regulation due to delays and "promises of change" due to the transition from the Obama administration to the Trump administration, he said. Moreover, not all state-owned OSHA plans had adopted the rule, he said.
But interestingly, a large number of companies that are not regulated by the electronic register of the registry submit data, partly because of general confusion about the rule, said. In 2017, 60 956 so-called out-of-scope submissions were made of Form 300A data, up from 52 171 in 2016.
"The first thing (OSHA) does with the tasks is the focus on managing resources," said Eric Conn , co-founder of Conn Maciel in Washington and chair of the company's national OSHA workplace safety practice. "If you are not guilty, if you have establishments that do not meet the correct number of employees or if you are in a state that has not yet adopted the rule, our general advice will not leave until you are legally (or) in a regular manner, because if you do this courtesy for OSHA, the courtesy they return can inspect your workplace. We were very surprised that such a large number of employers are not covered by the rule submitting information. "
In 2015, the agency implemented a serious settlement rule which contained an assignment that all deaths at the workplace should be reported within eight hours, but added a new requirement that employers report an individual worker's inpatient hospital stay – instead of three or more employees who previously required – as well as all amputations and loss of eyes within 24 hours.
Reportable hospital settings according to the rule increased to 9 135 in 2018, up from the 7,638 hospital stays reported in 2015, according to federal OSHA statistics. About 27% of the hospital stays reported in 2018 resulted in inspections.
Last year, 2,922 amputations were reported – compared to 2,646 in 2015 – with 48% of the 2018 amputations resulting in OSHA inspections.
However, upward trends in severe injuries and disease reports do not indicate an increase in injuries or deaths, says Conn.
"My guess is that you see these numbers increase year after year as people become more and more familiar with this new rule" he said. "You've been working for decades to report a hospital stay of three or more employees and nothing special about amputations. It has been a few years for the regulated community to become familiar with this rule, so I wouldn't be surprised to see that these numbers continues to increase, even as workplaces can become even more and more secure. "
But OSHA had no insurance employers reported work-related hospital stays, amputations and eye losses with estimates showing that employers did not report 50% or more of serious injuries, so the agency must take steps to prevent the under-investigation of deaths and injuries and ensure that employers properly identified the dangers, according to a report released in September by the US Department of Labor Office of Inspector General.
Field inspections are mandatory in some situations, including all deaths, after receiving a serious injury mark. However, in some cases, OSHA will only send a quick response inquiry letter requesting the employer to conduct an accident investigation and document findings and remedies, notes Conn Maciel's attorneys.
But a common mistake made by the employers is to place all the debt on the employee in these quick reporting reports because OSHA has been very clear that it does not see such reports as thorough investigations, says Lindsay DiSalvo, a Washington-based associate with Conn Macil's OSHA and workgroups and working groups.  "Do not record employment offenses as the first or only cause of injury," she said. "There should be other reasons listed in the report. OSHA generally generates the employee's maladministration as the sole cause of injury and is likely to look harder at a report that can only point out the employee's maladministration as a single cause of injury. "
Employers should list at least one corrective action in these reports because OSHA wants to see employers take steps to prevent serious injury or disease," she says.
Getting a quick response survey letter is "a good sign" because it means that OSHA does not intend to inspect the workplace, Conn said.
"Your goal is to keep them inspected so that you give them enough that they close the file without getting in place to do an inspection, but not so much that you have settled for violations if they decide to inspect, "he said.