{"id":6941,"date":"2023-02-02T08:28:37","date_gmt":"2023-02-02T13:28:37","guid":{"rendered":"https:\/\/oshadefensereport.com\/?p=6941"},"modified":"2026-03-20T13:22:42","modified_gmt":"2026-03-20T17:22:42","slug":"e-recordkeeping-rule-update-for-coalition","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/osha-defense-report\/e-recordkeeping-rule-update-for-coalition\/","title":{"rendered":"Timing for OSHA to Finalize the Amended E-Recordkeeping Rule Is Becoming More Clear"},"content":{"rendered":"

By Dan C. Deacon<\/a> and Eric J. Conn<\/a><\/strong><\/em><\/p>\n

We have a quick update for you about OSHA\u2019s rulemaking to expand the Electronic Recordkeeping Rule. \u00a0Throughout the last year, OSHA\u2019s intent to finalize this rule ahead of the next deadline for employers to submit E-Recordkeeping data (i.e., well ahead of March 2023) was clear, but that will not be the case. \u00a0OSHA delayed finalizing the proposed revisions to the E-Recordkeeping Rule several times.\u00a0 \"Capture<\/a>The delays have now prompted further litigation by a pro-worker activist group in furtherance of a challenge initiated during the Trump Administration to the rollback<\/a> of the E-Recordkeeping rule by Trump\u2019s OSHA early in his term.<\/p>\n

The challenging groups are resuming their 2019 lawsuit (State of New Jersey, et al., v. Walsh<\/em>) because the Biden Administration recently moved its target date for finalizing the updated rule from pre-March 2023 to June 2023, arguing that OSHA\u2019s \u201cpattern of reneging on its agreements\u201d means litigation is the only sure path to resolve their claims.\u00a0 OSHA had previously signaled that the rule would be finalized by March 2023 in its Fall 2022 regulatory agenda<\/a>, but OSHA\u2019s counsel recently informed the petitioners and the Court that OSHA would not make that commitment by at least three months.\u00a0 A short time later, the petitioners filed a couple of briefs with the U.S. Court of Appeals for the District of Columbia Circuit earlier this month (on January 11th<\/sup> and 12th<\/sup>), asking the DC Circuit to bring the case out of abeyance and set a quick schedule.\u00a0 The petitions brief requesting to revive the case under a scheduling order notes that OSHA\u2019s Counsel stated that OSHA now hoped to finalize the Rule by the end of June 2023. \u00a0OSHA is seeking to keep the case in abeyance, as the extension of time to issue a final rule represents a minor change in the rulemaking timeline and advancing the litigation would not serve the interest of judicial economy.<\/p>\n

OSHA appears to be taking its time reviewing and analyzing written comments to the proposed rule, but OSHA\u2019s latest declaration of a June 2023 deadline with renewed pressure by the petitioners to finalize this rulemaking makes it highly likely we will see a final rule this Summer.\u00a0 To do that, we will likely see a proposed final rule delivered to the White House\u2019s Office of Management and Budget within the next couple of months.\u00a0 This has no impact on the submission of Calendar Year 2022 data that is coming due in about a month \u2013 March 2, 2023<\/u><\/strong>, but this timing does make it likely that the changes will apply to the next data submission \u2013 March 2, 2024<\/u><\/strong>.<\/p>\n

As a reminder for what is at stake in this rulemaking, OSHA\u2019s current proposed changes to the E-Recordkeeping Rule seek not only to restore the requirement from the original 2016 rule to have larger employers submit the full panoply of recordkeeping data (i.e., data from 300 Logs, 301 incident reports, and the 300A annual summaries), but also to expand the number of employers that must submit data by lowering the threshold number of employees from 250 to 100 and by expanding the list of covered high-hazard industries.\u00a0\u00a0Specifically, under the proposed amendments to the E-Recordkeeping Rule:<\/p>\n