The Tug-of-War Between Fed OSHA and the State OSH

Asher TobinIn The News

A seal with the words Department of Labor - United States of America in the surrounding cirlce. The the middle is an eagle flying above a crest filled with tools.

A fascinating jurisdiction tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule). The E-Recordkeeping Rule requires large employers and smaller employees that operate in “high hazard industries” to proactively submit to electronic injury and illnesses data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).

State Plan Adoption of OSHA’s E-Recordkeeping Rule

When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However. because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.

Most of the 20+ State Plans in the U.S. acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule. Those states included:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule. The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.

Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.

Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA. This year, however, fed OSHA spoke up about the delinquent states.

Fed OSHA’s Controversial April 30, 2018 Press Release

With only two months until the July 1, 2018 deadline for year two of injury data submissions,

fed OSHA sparked a big controversy with an April 30, 2018 Press Release instructing employers with establishments in state plan states where the rule has not yet been finalized to submit their 300A data by the July 1st deadline anyway.

In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan Responses to OSHA’s Press Release

The seven states that have not yet adopted the E-Recordkeeping Rule provided conflicting responses to fed OSHA’s directive, falling into three categories:

  1. Advising employers in their states to submit their injury data before the July 1, 2018 deadline;
  2. Reporting that the states would be adopting an E-Recordkeeping Rule imminently, so employers should plan to submit their 2017 injury data this year; or
  3. Pushing back against fed OSHA’s call for employers in their states to submit data.

Cal/OSHA updated its website advising employers to submit, rather than requiring them. More specifically, California posted

directions on the Department of Industrial Relations website to employers stating:

“Even though California has not yet adopted its own state rule, employers are advised to comply with federal OSHA’s directive to provide Form 300A data covering calendar year 2017.” Although employers are “advised” to submit their OSHA 300A data by the deadline, Cal/OSHA is not affirmatively requiring employers to submit the data or otherwise comply with fed. OSHA’s recent publication.

Minnesota and South Carolina expressed they are both planning to adopt the rule sometime this month (in May 2018), but it is unclear when and if that will be completed with sufficient time for employers there to comply with a July 1, 2018 submission deadline.

By stark contrast, the state of Washington struck back at fed OSHA. A few days after OSHA’s press release, the Washington Department of Labor & Industries issued a statement

on Twitter announcing that WA DLI would not go along with OSHA’s recent call for employers in State Plan States to submit their injury and illness data electronically to OSHA, and that:

“Employers in Washington are still NOT required to electrically submit data to OSHA’s new Injury Tracking Application, despite a recent announcement from OSHA.”

Maryland reported that, as of May 2nd, MOSH will not be requiring employers to submit 300A data electronically to OSHA. Its website still says:

“Maryland employers are under no legal obligation to register and/or submit their OSHA 300 information to OSHA via OSHA’s Injury Tracking Application (ITA).”

Similarly, Wyoming published a notice to employers on the Department of Workforce Services website stating:

“The electronic reporting requirement does not apply to Wyoming OSHA covered employers, despite an April 30, 2018, OSHA news release stating all employers across the country are subject to the rule.”

Utah OSHA informed us that employers in the State were “welcome to” submit their injury data through fed OSHA’s ITA but they did not have to, and this is not something UT OSHA “can enforce.”

Obviously, OSHA’s directive, which seemingly impinges on the state’s exclusive jurisdiction, and the responses to this directive by the seven states that have not yet adopted the rule, has caused significant confusion.

Fed OSHA’s Authority Over State Plans and Employers in State Plan States

Our legal analysis leads us to conclude that employers in those states (California, Washington, etc.) need not submit the data this year, assuming those states do not adopt an E-Recordkeeping Rule in the immediate future.

The OSH Act provision cited by fed OSHA, Sec. 18(c)(7), does not give fed OSHA any authority over employers in state plan states. Rather, that provision sets the minimum criteria that a State OSH Plan must meet to be eligible to be approved by fed OSHA. In other words, the provision gives fed OSHA authority over State Plans, to require the State Plans to include certain elements, or be denied approved status. That provision of the Act, however, does not grant fed OSHA any authority over employers in those State Plan states.

 

Read the full article at Lexology