Authored by Ray Perez 

With the December 1, 2017 deadline fast approaching for covered employers to electronically submit injury and illness records to OSHA, the Agency has indicated that it is close to completing its review to the Obama-era Improve Tracking of Workplace Injuries and Illnesses final rule.  In a Status Report filed on October 10, 2017 with U.S. District Court for the Western District of Oklahoma which has stayed litigation over the rule pending further rulemaking, the Department of Justice (“DOJ”) indicated that OSHA continues to develop a Notice of Proposed Rulemaking (“NPRM”) to “reconsider, revise, or remove provisions of the [Rule]” as announced in the July 20, 2017 Office of Information and Regulatory Affairs’ regulatory agenda.

DOJ went on to state that it understands that OSHA has “drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes, and that OSHA’s economists have made significant progress on the economic analysis and continue to refine it.  Once the analysis is finalized, the draft NPRM will proceed through the agency clearance process.”

The Status Report gives no indication as to when this process will be completed or when the NPRM will be published.  Many industry groups and the Commerce Department have urged the new administration and OSHA to eliminate provisions under the rule that would make employer injury and illness data publically available online and which would restrict existing employer policies such as safety incentive programs and post-accident drug testing.

Unfortunately, the filing does not reveal what parts of the rule may be subject to revision or removal.  There are some expectations that OSHA will maintain the electronic reporting requirements but will not make the information publically available. OSHA may also eliminate the rule’s anti-retaliation provisions.

We will provide updated information once we know more about any proposed changes to the rule.