Roller Coaster Rulemaking: OSHA Publishes Proposed Rule To Reduce Injury And Illness Electronic Reporting Requirements

Seyfarth Synopsis: OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. OSHA is amending provisions of the "Improve Tracking of Workplace Injuries and Illnesses" (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). 83 Fed. Reg. 36494 (July 30, 2018).

OSHA, in its Notice of Proposed Rulemaking (NPRM), has "preliminarily determined" that the risk of disclosure of information contained in OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), the costs to OSHA of collecting and using the information and the reporting burden on employers are "unjustified given the uncertain benefits of collecting the information." The proposed rule eliminates the requirement to file the Form 300 and 301 for establishments with 250 or more employees. These large employers will still be required to electronically file the OSHA 300A summary of work-related injuries and illnesses. OSHA submits that this proposed change will maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

We had blogged previously on the WII Rule. See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to "Reconsider, Revise, or Remove Portions" of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule..

In the proposed rule, OSHA notes that Form 301 requires the collection of sensitive information about each individual worker's job-linked illness or injury, information an employer must collect with or without the worker's consent. "While some of the information is likelier to be regarded as particularly sensitive—namely, descriptions of injuries and the body parts affected—most of the form's questions seek answers that should not be lightly disclosed, including:"

• Was employee treated in an emergency room?
• Was employee hospitalized overnight as an in-patient?
• Date of birth?
• Date of injury?
• What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific.
• What happened? Tell us how the injury occurred.
• What was the injury or illness? Tell us the part of the body that was affected and how it was affected; be more specific than "hurt," "pain," or "sore."
• What object or substance directly harmed the employee?

In the May 2016 final rule (81 Fed. Reg. 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually. Individual injury and illness case information from these forms could be disclosed to third parties pursuant to FOIA requests from the public, thereby endangering worker privacy. The NPRM proposes to amend OSHA's new electronic recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301, to protect sensitive worker information. OSHA also admits that it has not devised a plan for how it would "collect, process, analyze distribute, and programmatically apply" this information in a meaningful way to justify its collection.

OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers' sensitive information to possible FOIA disclosure. Comments, due on September 28, 2018, may be submitted to docket number OSHA-2013-0023.

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