Confused by OSHA’s Volks & Electronic Recordkeeping Rules?

“Volks” Rule Invalidated

Recently, President Trump’s signature overturned the Occupational Safety and Health Administration’s (OSHA’s) controversial “Volks” rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.”  The rule, which became effective January 1, 2017, gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the five-year records retention period.  The rule was invalidated when President Trump signed a resolution adopted under the Congressional Review Act (CRA) to overturn it.  Under the CRA, OSHA is prohibited from issuing a rule in the future “in substantially the same form” as the invalidated rule.  The bottom line is that OSHA may no longer issue citations outside the OSH Act’s six-month statute of limitations.

Reporting Deadlines under Electronic Recordkeeping Rule to be Extended

OSHA’s electronic recordkeeping rule, which also took effect on January 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms.  OSHA intends to post company-specific injury and illness data it collects on its public website.  Documentation of accidents and injuries are the essence of identifying and improving workplace safety and health.  According to OSHA, with the congruence of information on specific industries’ accidents and injuries, public disclosure would help to foster awareness of the dangers and injuries realized annually for high-risk industries and would allow companies to demonstrate to future clients, investors, job applicants, and customers a real-time comparison for individual safety and health programs per company.

At present, employers are unable to compare their specific industries’ experience modification rate (EMR), which is a number used by insurance companies to gauge both past cost of injuries and future chances of risk.  It evaluates the number of lost time incidents compared to total hours worked by the company in defined time periods.  OSHA, by assembling this data, will allow employers to compare their safety programs and performance with organizations performing similar work and afford them the opportunities to improve their programs to a level of quality not yet realized.

The electronic submission requirements apply to establishments with 250 or more employees that are currently required to keep OSHA injury and illness records using OSHA Forms 300, 300A, and 301 as well as establishments with 20 to 249 employees that are classified in certain high-risk industries.  These requirements will be phased in over the next two years.  According to their website, OSHA is not accepting electronic submissions now and has published a notice of proposed rulemaking to extend the date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically from July 1, 2017, to December 1, 2017.  Updates will be posted to the OSHA website at when they are available.