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OSHA to Employers Who Violate the Recordkeeping Rule: No Problem!

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Fewer than half of all employers required to send their injury and illness information into OSHA last year sent in the information. “The Occupational Safety and Health Administration was expecting about 350,000 summaries to be submitted by Dec. 31, the agency numbers provided to Bloomberg Environment March 7 show. Instead, employers required to participate submitted 153,653 reports, OSHA said.”

The so-called electronic recordkeeping regulation, issued under the Obama administration, intended the information to be used by OSHA to help target the most dangerous establishments, and the information would be posted to help employers compare themselves with others in their industry, and to inform workers and the public about employers’ safety records.

Employers with 250 or more employees, as well as worksites with 20 or more employees in high hazard industries, were required to send in their annual summary report — the OSHA Form 300A — by December 15, 2017.

But despite this huge crime wave, and a warning from Tom Galassi, OSHA’s director of enforcement, that “Those employers that were required to submit records and failed to so do may be subject to citation,” it seems likely that most employers who failed to comply with the law will receive no more than a slap — or maybe a slight caress — on the wrist. According to a memo sent to the field, employers are only subject to enforcement if OSHA begins an inspection before June 15 — six months after the December 15 due date for the submissions. If an employer is found not to have submitted the information — but gives it to the inspectors when they arrive — the employer will receive an “other than serious” citation, but no penalty.

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is. 

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is.

The memo also states that if the employer did not submit the 2016 data, but has already submitted the 2017 data, again, no penalty. The only way an employer can earn a penalty is if they refuse to give the inspector any data. The maximum penalty is $12,934, although it is highly unlikely it would reach that level. If the employer can show that the information was not sent due to technical difficulties, no citation would be assessed.

Former OSHA head Dr. David Michaels who issued the original regulation, said in an interview with Bloomberg, “OSHA is making a serious mistake. By not making meaningful efforts to enforce this legal requirement, OSHA is encouraging law-breaking employers, most likely those with the highest injury rates, to ignore OSHA’s regulation.”

Indeed. One wonders why even have a regulation if there is no penalty for ignoring it. The Trump administration and its business overlords have expressed their displeasure with the regulation, especially OSHA’s original intention to post the information, and is considering rolling back the next phase which would require more detailed information to be sent to OSHA.

Industry attorneys speculate that the reason so many employers are not complying is because they’re confused about whether they’re covered, or they thought OSHA would postpone the requirement again (after several previous postponements), or that they feared sending in information would increase their chances of getting inspected (which it would, if they have a poor record.)

Or maybe they just thought that this law-and-order administration doesn’t really take enforcing the law seriously.

The 2017 data is due to OSHA by July 1, 2018.

But then again, who cares?

This blog was originally published at Confined Space on March 9, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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