By James L. Curtis, Kerry M. Mohan, and Craig B. Simonsen
The Occupational Safety and Health Administration announced yesterday that it will extend the comment period thirty days, to March 8, 2014, on its proposed rule to “improve workplace safety and health through improved tracking of workplace injuries and illnesses.” 79 Fed. Reg. 778 (January 7, 2014).
As we noted in an earlier blog (OSHA Shame Game Continues: Its Plan to Publish Injury Rates For Employers With Over 250 Employees), the proposed rule would amend OSHA recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers are required to keep under OSHA recording and reporting regulations. Under current regulations, 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 this OSHA 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. OSHA intends to also 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, third parties of all kinds, including 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.
While OSHA had indicated in its original proposed rule that a hearing was not required for this rulemaking, it has since planned a public hearing, which is scheduled for this week, on January 9, 2014. Employers now have until March 8, 2014, to submit written comments on the proposed rule. Employers must act quickly to determine the potential effect of this OSHA rulemaking on its business, and whether they wish to participate or monitor the public hearing, submit public comments, such as alternative or different provisions, or even to oppose the proposal altogether.