The long-running drama of the Occupational Safety and Health Administration (OSHA) electronic injury reporting rule entered a new chapter recently when on July 30 OSHA opened a rulemaking intended to remove many of the Obama-era requirements employers found objectionable.
The agency also announced it will not enforce this year’s deadline—already passed—and next year’s filing date will be March 2.
In May 2016, towards the end of the Obama presidency, OSHA announced its final electronic reporting rule. At that time, the agency proposed that OSHA 300 logs and 301 forms would be published on OSHA’s website, with employee names and their other personal information redacted.
Publishing employer information on the Internet for all to see was consistent with Obama’s OSHA chief David Michaels’ ongoing policy that called for publicly “shaming” companies who reported injuries into behaving better. As you might expect, employers objected.
After President Trump took office, OSHA responded to complaints from the employer community by announcing that it would open a formal rulemaking proceeding to rescind the new rule, but before doing so the agency sowed confusion among employers by setting, then postponing, several report deadlines.
Currently, the final deadline for employers with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) for last year had been July 1, 2018. Because of confusion over whether the rule would continue in force, many employers failed to meet the deadline.
On July 25, a coalition of public interest groups sued OSHA for failing to implement the electronic reporting rule and for not having opened a formal rulemaking proceeding to change it. That issue now seems to be moot. One of the groups, Public Citizen, also filed suit in January over OSHA’s failure to make public report information it had already gathered.
OSHA’s July 20 proposed rulemaking would eliminate the requirement that employers file the detailed 300 and 301 logs electronically and that they be made public. Instead, all employers with 20 or more employees in designated industries would only be required to e-file their 300A general summary of workplace illness and injuries.
OSHA argues that the proposal also will protect employee privacy, which it said the Obama-era rule may have jeopardized especially when it comes to OSHA Form 301—which includes sensitive information regarding medical treatment, the nature of the employee’s injury or illness, and a description of how the injury occurred, along with other personal data.
The Obama-era agency had said it would redact employee names and other personal data from the reports made public, but critics said the remaining detailed information about when and where certain injuries and treatments had taken place would make those employees easily identifiable.
In addition, the Trump OSHA points out that under the previous rule, once this information is in OSHA’s hands, it becomes subject to public disclosure under the Freedom of Information Act (FOIA). Public Citizen had resorted to FOIA requests and then engaged in litigation in order to pressure the agency to release more than 23,000 such records.
OSHA Questions Need Answers
OSHA also now questions the value of gathering mass amounts of granular data about workplace injuries, given the agency’s limited resources and inability to analyze the data in hundreds of thousands of forms to be used for enforcement purposes. In addition, the agency expressed concern about costs—not just for the government, but also for employers—estimating that the current rule would collectively cost affected employers $8.2 million each year.
The notice of proposed rulemaking stated, “OSHA has reevaluated the utility of the Form 300 and 301 data for OSHA enforcement efforts and preliminarily determined that its (uncertain) enforcement value does not justify the reporting burden on employers, the burden on OSHA to collect, process, analyze, distribute, and programmatically apply the data, and—especially—the risks posed to worker privacy.”
In seeking public comments on the proposal, the agency said it is particularly interested in hearing about the rule’s impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure. The comments are due no later than September 28 and may be submitted to docket number OSHA-2013-0023.
Regarding public comments, OSHA said it wants to hear about the risks to worker privacy posed by the electronic collection of information from Forms 300 and 301 from establishments with 250 or more workers. How likely are these risks to materialize? How could OSHA make them less likely, and what resources would be required? OSHA also wants to know what are the benefits of electronically collecting this information.
Unfortunately, the proposed regulation does not address the anti-retaliation provisions, including whether certain policies are considered unreasonable and deter employees from reporting injuries and illnesses, thus making them in violation of the rule, says Tressi L. Cordaro, an attorney with the law firm of Jackson Lewis.
“The agency had previously vocalized that policies such as certain drug testing and safety incentive programs were prohibited under the rule. As such, that employers would be subject to citations for such allegedly discriminatory policies,” she asserts.
Attorney John F. Martin of the Ogletree Deakins law firm agrees. “OSHA’s failure to propose changes to the interpretation of the remaining rules means that employers with post-accident drug testing programs and safety incentive programs may be at risk. Many regional and area offices will likely continue the status quo with respect to those areas.”
Howard A. Mavity, an attorney with the law firm of Fisher Phillips, also called on employers to file comments, telling them they should include the drug testing issue in their comments. “Hopefully, employers and their counsel also will focus on the failure to address the attacks on post-accident drug testing.”
Mavity also says employers should consider the opportunity presented by the pause in injury reporting to clean up their recordkeeping practices. In anticipation of submission of Forms 300 and 301 under the old rule, many employers discovered problems with their records, including over- and under-reporting, along with many citable technical errors. He says employers should use the time they have because of the rulemaking proceeding to improve and clean up their recordkeeping practices.