By Brent I. Clark and Kerry M. Mohan
On November 7, 2013, OSHA announced a proposed rule regarding its injury and illness recordkeeping requirements that would make employee injury and illness records public. 78 Fed. Reg. 67254 (Nov. 8, 2013).
Currently, employers with eleven or more employees are required to keep and maintain OSHA 300, 300A, and 301 injury and illness logs that document work-related injuries. Though an employer is required to post its 300A summary form at the workplace from February 1st through April 30th every year, it is not required to make the 300A form public or provide any employee injury and illness information to the public. In fact, doing so may run afoul of various state and federal laws, including HIPAA, the ADA, and the FMLA.
Under OSHA’s proposed rule, employers with more than 250 employees would be required to file electronic injury and illness reports to OSHA on a quarterly basis, in addition to whenever OSHA requests such information. Further, OSHA would make an employer’s electronic injury and illness reports, including the current 300, 300A, and 301 forms, minus the injured employee’s name and identifying information, available to the general public. As a result, employees, community activists, and plaintiff’s attorneys would be able to access injury and illness information and could use that information to demand concessions, protest an employer’s activities, or bring lawsuits against the employer.
OSHA’s proposed rule is another example of OSHA’s attempt to “shame” employers it deems unsafe. Further, because of the D.C. Circuit’s decision in AKM LLC, doing business as Volks Constructors v. Sec. of Labor, 675 F.2d 752 (D.C. Cir. 2012), which established a strict six-month statute of limitations on recordkeeping violations, OSHA’s proposed rule is likely an attempt to access injury and illness logs on a more regular basis to avoid statute of limitations issues.
Employers have until February 6, 2014 to submit written comments on the proposed rule. Accordingly, employers must act quickly to determine the potential effect of this OSHA rulemaking on its business, and whether they wish to submit comments, such as alternative or different provisions, or even to oppose the proposal altogether.