What Does the Future Hold for OSHA's Final Rule Requiring the Electronic Submission of Recordkeeping Data?

This article will provide readers with an overview of OSHA’s final rule requiring the electronic submission of recordkeeping data. Readers will also learn what the future may hold in store for the ruling and its provisions.

In May of 2016, the final rule “Improve Tracking of Workplace Injuries and Illnesses” was issued by the Occupational Safety and Health Administration (OSHA) to revise its recording and reporting requirements.

This ruling, which became effective on January 1, 2017, requires more than 460,000 employers in certain industries to electronically submit to OSHA the injury and illness information that they are already required to keep under existing regulations.

According to the final rule, establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.

Establishments with 20 to 249 employees that conduct work in industries that OSHA considers highly hazardous must electronically submit to OSHA information from form 300A annually.

These high risk industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

OSHA plans to make submitted recordkeeping data readily available to the public in standard open formats on osha.gov. Interested parties will be able to search and download the data. OSHA’s goals for posting this data include encouraging employers to increase their efforts to prevent worker injuries and illnesses, and enabling researchers (and other groups) to examine these data in innovative ways that may help employers make their workplaces safer and healthier.

The reporting requirements of the final rule will be phased in over two years, with the first submission deadline rapidly approaching. By July 1, 2017, all establishments impacted by the ruling must electronically submit their annual 2016 Form 300A data to OSHA.

The following table contains additional information about key submission deadlines. 

Submission Year

Data Collected in Calendar Year

Establishments with 250 or more employees

Establishments with 20-249 employees

Submission Deadline



Form 300A

Form 300A

July 1, 2017



Forms 300A, 300, 301

Form 300A

July 1, 2018



Forms 300A, 300, 301

Form 300A

March 2, 2019

How will organizations submit this data to OSHA?

When the final rule was first published, OSHA revealed that the agency intends to provide a secure Injury Tracking Application (ITA) web site for the electronic submission of recordkeeping information.

In addition, in order to enable users of current OSHA recordkeeping software systems to submit their incident data electronically, OSHA also plans to offer a CSV file upload tool and an Application Programming Interface (API).

OSHA had announced that it would roll out this API and file upload tool in February of 2017. During that month, the secure ITA web site and web form for electronic data submission were also slated to be launched.

While OSHA has released technical specifications and instructions for the file upload tool and API, their launch, as well as the launch of OSHA’s ITA site, have been delayed.

When asked whether OSHA could provide an updated timeframe for the launch of the ITA site and file uploads, a representative from the agency’s Department of Communications could only comment that OSHA is not accepting electronic submissions at this time. What are the other provisions of this rule?

In addition to requiring the electronic submission of recordkeeping data, the final rule includes provisions that prohibit employers from retaliating against workers for reporting a fatality, injury, or illness.

Section 11(c) of the Occupational Safety and Health Act already prohibits retaliation against employees who report a workplace incident. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation.

Under the new final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation.

This new provision is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves.

However, OSHA’s interpretations of the anti-retaliatory provisions of the final rule have also generated some controversy, as the agency has concluded that post-incident drug and alcohol testing deter employees from reporting injuries and illnesses. According to the comments provided in the final rule, OSHA explains that post-injury drug and alcohol testing policies must be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.

In addition, under the rule, safety incentive programs may be viewed as retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses. What has been the response to this rule?

Since the final rule was published, several court cases have emerged challenging the legality of the final rule.

Shortly after the final rule took effect, the National Association of Home Builders (NAHB), backed by several other industry groups, filed a lawsuit against OSHA in the U.S. District Court. This lawsuit claims that OSHA lacks the authority to issue the rule’s anti-retaliation provision, in addition to opposing the public posting of employers’ injury and illness logs.

The NAHB expressed concerns the public posting will expose businesses to reputational harm with no evidence that it would effectively improve workplace safety. Several public health advocacy groups filed a motion in March to intervene in the lawsuit, wishing to act as defendants alongside OSHA. Among these public health groups are Public Citizen, which argues the rule will improve data collection which will be used to identify trends and improve worker protections. The case is currently waiting to be reviewed by the courts.

In July of 2016, Associated Builders and Contractors and seven other organizations also filed a lawsuit to block the rule from going into effect.

The lawsuit similarly focused on the anti-retaliation provisions that prohibit employers from using drug testing after an incident to retaliate against workers who report injuries or illnesses. The organizations claim the provision is as an overreach of authority by unlawfully limiting safety incentive programs and routine post-accident drug testing.

The motion was denied by the U.S. District Court in late November, and decisions on the legality of the rule have been delayed until after the ruling’s first submission deadline on July 1, 2017.

What does the future hold?

Currently, Alexander Acosta is poised to be confirmed as President Trump’s Secretary of Labor. Acosta’s nomination was approved by a Senate committee at the end of March and is expected to be approved by a full Senate vote in the near future.

As head of the Department of Labor, one of Acosta’s first duties will be to appoint several vacant seats in OSHA’s staff. Currently, the agency’s Assistant Secretary, Chief of Staff, Senior Advisors, and one Deputy Assistant Secretary position are all vacant.

While Acosta’s agenda and viewpoints on the rule are not fully clear, more progress might be made on the ITA site and file upload process when these vacancies within OSHA are filled.

In addition, a representative of OSHA’s Department of Communications indicated that the agency may move to postpone the July 1, 2017 electronic submission deadline so that organizations would not have to submit their data until the end of the 2017 year.

Delaying the ruling’s first submission deadline would not only provide OSHA with more time to build and release the ITA site and other data submission tools, but would also ease the burden for employers by allowing them additional time to prepare their data.

The postponement of the rule’s first submission deadline could also potentially allow the Texas or Oklahoma federal courts to rule on the legality of the rule’s anti-retaliation provisions before employers are required to comply with electronic submission deadlines.

Any updates regarding the Electronic Recordkeeping rule will be posted to the OSHA website: https://www.osha.gov/recordkeeping/index.html.

More information about OSHA Recordkeeping and the OSHA final rule are also available from the following sources: Read the Final Rule - https://federalregister.gov/a/2016-10443 Download OSHA’s Fact Sheet - https://www.osha.gov/Publications/OSHA3862.pdf Frequently Asked Questions about the Rule - https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html Learn more about the OSHA Recordkeeping Forms - https://www.osha.gov/recordkeeping/RKforms.html

Clare Epstein is a Vice President of TRA, Inc. and oversees IndustrySafe Safety Management Software. Numerous organizations throughout the United States utilize IndustrySafe Safety Software to record, track, and analyze incident data and generate OSHA regulatory reports.

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