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Jim Kendzel, ASA Vice President of Advocacy
On Friday, September 28th the American Supply Association (ASA) submitted comments on OSHA’s Proposed Rule, Tracking of Workplace Injuries and Illnesses (83 Fed. Reg. 36494, July 30, 2018). In addition, ASA signed on to letters submitted by the National Association of Manufactures (NAM) and the Coalition for Workforce Safety which are in support of the ASA comments.
ASA appreciates that OSHA is formally proposing to end the requirement that establishments with 250 or more employees must submit workplace injury and illness data on the 300 and 301 forms, thus only having to submit the 300A form. However, this makes only a modest change to the regulations while the Proposed Rule is silent on issues that most concern ASA members and other employers. To summarize, these issues are as follows:
ASA notes that on July 8, 2016, the National Association of Manufacturers (NAM) and other business groups sued OSHA, targeting the whistleblower provision’s impact on safety incentive and drug testing programs. In addition, on Jan. 14, 2017, the U.S. Chamber of Commerce and another set of business groups filed a second lawsuit in the U.S. District Court for the Western District of Oklahoma seeking a permanent injunction of the entire rule. Both cases are stayed to allow the Trump Administration time to determine how to respond and OSHA must submit updates every 90 days to the court in Oklahoma. But this Proposed Rule is so minimal in addressing the various issues in the Tracking Workplace Injuries and Illnesses regulations (or Electronic Recordkeeping Rule), that it raises the question as to whether these lawsuits might be restarted.
- OSHA wants to retain collection of the 300A annual summaries which contain confidential business information but gives no indication of trying to protect this information from disclosure; employers are concerned that these forms would be subject to Freedom of Information Act (FOIA) requests and that a future administration could release these forms;
- OSHA wants to add Employer Identification Numbers (EINs) to these forms, which seems unjustified and gives employers concerns that this sensitive information will be released inappropriately, even if EINs may be available from other sources;
- OSHA has not addressed the problems associated with the anti-retaliation “whistleblower” provision that was added through a supplemental rulemaking.
ASA also noted that while these issues continue to linger, employers should have submitted 300A forms electronically to OSHA by July 1, 2018. Also, on April 30, 2018, the agency clarified that employers in state-plan states where the state has not yet issued a companion regulation still must meet federal OSHA’s requirements. Finally, in 2019 and annually thereafter or until further notice, the 300A form must be electronically submitted to OSHA by March 2.
Accordingly, ASA urged OSHA to revise this proposal so that 300A annual summaries are not collected, and to address the many problems with the anti-retaliation provision.
ASA is committed to being the voice of the industry in legislation, regulation and codes & standards. Is there a subject you believe ASA should be taking a position and if so, please contact Catherine Tredwell, ASA Director of Government Relations, at firstname.lastname@example.org.
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