Injury and Illness Data Through ITA Due This Friday

Last month, OSHA announced that the deadline for submitting electronic injury and illness data through its Injury Tracking Application (ITA) would be moved back to Friday, Dec. 15 in order to allow employers to become familiar with the new reporting system. Unfortunately, the rule has faced debate and delay.

Initially, certain employers were to electronically submit their 2016 Form 300A to OSHA by July 1, then, just a week prior to that date, the deadline was extended to Dec. 1 to allow for the new administration to review the requirements prior to implementation.

Several states have not yet adopted this new requirement, including: California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming. Unless an employer in one of these states is under federal jurisdiction, he/she is not required to submit company illness and injury data through the ITA. State and local government establishments in Illinois, Maine, New Jersey and New York are also not required to submit data.

What Questions Remain?

“We thought there was a strong possibility that the new administration would eliminate or scale back the electronic reporting requirement due to employer concerns regarding the onerous nature of the reporting process and the potential publication of proprietary information on an OSHA website,” said Nicole Abastillas, a senior labor and employment attorney at Kilpatrick Townsend & Stockton.

Currently, OSHA is reviewing the provisions of the final rule. The administration recently published a notice stating that it intends to reconsider, revise, and possibly remove portions of the rule going forward into 2018. Abastillas explained that this makes it unclear whether or not OSHA will publish the reports on its website.

An anti-retaliation policy is also being considered under the new rule to prohibit employers from retaliating against workers who report illnesses and/or injuries. This policy would increase OSHA’s ability to prosecute on behalf of workers who faced retaliation from their employers. This new rule would even allow OSHA to pursue claims even if a worker does not file a retaliation complaint.

New anti-retaliation provisions could prohibit employers from conducting a mandatory post-incident drug test. OSHA’s stance is that drug testing can be seen as retaliation against an employee as it is could be perceived as invasive or embarrassing.

Currently, the United States nominee for the OSHA assistant of labor, Scott Mungo, is awaiting approval from the Senate. If/when Mungo is approved, employers should expect more guidance from the administration on whether or not the information they submit to the ITA will be published online, and what the impact of anti-retaliation policies will be on drug testing policies.

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