By James L. Curtis and Craig B. Simonsen

In a stunning finding, after public hearings, OSHA has concluded, based on “many stakeholders expressed concern,” that its illness reporting requirements proposal “could motivate employers to under-record injuries and illnesses.” 79 Fed. Reg. 47605 (August 14, 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 underlying 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.

The OSHA proposed rule provides that 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. Through this rulemaking 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 over the Internet 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.

Now, since public hearings on the proposal have been held, OSHA is suggesting that the “proposal could promote an increase in workplace policies and procedures that deter or discourage employees from reporting work related injuries and illnesses. These include adopting unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses.” To “protect the integrity of the injury and illness data,” OSHA is now considering adding provisions that will make it a violation for an employer to discourage employee reporting in these ways.

Much like an Advance Notice of Proposed Rulemaking, but actually late in the rulemaking proceeding, OSHA is now asking whether to amend the proposed rule to: 1) require that employers inform their employees of their right to report injuries and illnesses; 2) more clearly communicate the requirement that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and 3) provide OSHA an additional remedy to prohibit employers from taking adverse action against employees for reporting injuries and illnesses.

To facilitate discussion on this “late innings” added proposal modification, OSHA is extending the comment period again. Public comments, including comments on the OSHA’s new provisions to “protect the integrity of the injury and illness data,” are due on October 14, 2014.