On Aug. 1, 2017, OSHA went live with the data submission platformthat certain employers will need to use when submitting their injury and illness (I/I) data to the agency by the revised Dec. 1, 2017, deadline. The requirements arise under OSHA’s electronic recordkeeping rule, which was promulgated in May 2016.

The original data submission deadline of July 1 was delayed to permit OSHA to develop the web-based program and to enable employers to become familiar with the new system. It is unknown at this time whether the agency still intends for the submitted data to be publicly searchable by establishment, which was the original intent of the rule. Under the previous administration, this public access was intended to spur greater safety efforts through peer pressure and “public shaming” as part of OSHA’s effort to use behavioral economics to improve safety performance. The public disclosure of I/I data was among the controversial aspects of the rule, and prompted multiple groups to file suit against OSHA.

Under the e-recordkeeping standard, 29 CFR Part 1904 was modified to require all employers with worksites or 250 or more workers, as well as locations with 20 to 249 employees in select NAICS codes (mostly construction, manufacturing and certain other high-hazard sectors), to submit their I/I information to OSHA for public posting. In 2017, all covered employers will submit only data included on Form 300-A; in subsequent years, employers with 250 or more workers will also submit the data from Forms 300 and 301, while smaller companies will continue to provide only the summary data. The reporting deadline shifts to July 1 in 2018, and to March 2 in subsequent years.

The rule also contains antiretaliation provisions, protecting injured workers from disparate treatment in incentive, discipline and drug-testing programs. That portion of the rule became effective on Dec. 1, 2016. The rule is currently in litigation before the U.S. Court of Appeals, but the court declined to stay implementation while the case is pending.

The Injury Tracking Application (ITA) offers three options for data submission.

1. manually enter data into a web form;
2. upload a CSV file to process single or multiple establishments at the same time;
3. transmit data electronically via an API provided in automated recordkeeping systems.

OSHA anticipates it will take 10 minutes to create an account, then 10 minutes to input or upload the data. No paper submissions will be accepted for compliance, and employers who lack internet access are encouraged to do their submissions from public facilities, such as libraries, that offer free internet access.

In launching its new system, OSHA says the size trigger is based on establishment size, not firm size, because I/I records are maintained at the establishment level (defined as a single physical location where business is conducted or where services or industrial operations are performed). Firms, by contrast, are often comprised of multiple establishments. Data need only be submitted for those establishments within a firm that meet the submission criteria of size and NAICS. If an establishment is partially exempt from OSHA recordkeeping due to industry, then no data should be submitted for these establishments. Firms may submit establishment-specific data for multiple establishments, using a single account registration.

Third parties may also handle the submissions for the employer, but legal responsibility for the accuracy of the information remains with the employer. Furnishing false I/I data to OSHA can be criminally prosecuted. In addition, if the employer also receives an I/I data inquiry from Bureau of Labor Statistics, it must still provide BLS the requested data, even if it was previously submitted to OSHA.

Technical information on how to submit data and ancillary information about the final rule and OSHA requirements are available on OSHA's website.

Adele L. Abrams, Esq., CMSP, is president of the Law Office of Adele L. Abrams P.C., and ASSP’s federal representative.