By: Brent I. ClarkJames L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth SynopsisThe Occupational Safety and Health Administration (OSHA) has initiated a Site-Specific Targeting 2016 (SST-16) Program using the injury and illness information electronically submitted by employers to initiate OSHA inspections.  OSHA Directive No. 18-01, CPL 02, effective October 16, 2018.

In its news release about the Site-Specific Targeting 2016 Program, OSHA indicated that it “will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.”  The agency will then perform comprehensive inspections of employers who are selected for Program.  For CY 2016, OSHA required employers to electronically submit Form 300A (Summary of Work-Related Injuries and Illnesses) by December 15, 2017. The deadline for submitting the 300A data for CY 2017 was July 1, 2018, though OSHA indicted that employers may still provide this information to the database.

The SST-16 indicates that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.”  The inspection cycles are generated using software that randomly selects the establishments from among those that fall into the categories above. According to OSHA, the purpose of including non-responding employers on the inspection list is to deter employers from failing to report their injury and illness information in order to avoid inspection.  Similarly, OSHA will select a sample of low DART rate establishments to verify the reliability of the 300A data being submitted to the agency.  The scope of the inspection will be comprehensive, and not simply limited to recordkeeping practices or potentially hazardous areas or operations that caused an elevated DART rate.  Employers who have received a comprehensive safety or health inspection within 36 months of the creation of the SST-16 inspection list will not be inspected again.

Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses, will be required to electronically submit their 300A forms to OSHA each year by March 2.

In the SST-16, OSHA clearly lays out how the agency plans to use the injury and illness data it now electronically collects from employers.  Given the tangible impact the data will have on programmed OSHA inspections, employers are advised to take a proactive approach to monitor and address patterns in their injury and illness rates and should take care to ensure they are submitting accurate records to OSHA.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Joshua M. HendersonIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.

A six-month statute of limitations period currently applies to all citations issued under Cal/OSHA. Assembly Bill 2334 will allow the California Division of Occupational Safety and Health (Cal/OSHA), starting January 1, 2019, to cite employers for injury and illness record-keeping violations “until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In theory, the six-month limitation period could, depending on the circumstances, extend up to the five years that employers must maintain injury and illness records.  The limit firmly remains six months for federal OSHA.  See OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years.

The new law also may require the state to establish an advisory committee to determine whether employers should be required to file copies of their workplace injury and illness (WII) records with the state.

The law’s provisions leave many questions to be determined.  For example, if federal OSHA drops the requirement for employers to electronically file summaries of each injury with the Agency, would the committee recommend Cal/OSHA require employers to file with the state, instead?  It may well be quite a while before the committee is even created, much less makes recommendations to Cal/OSHA because the committee would conceptually be formed after federal OSHA loosens current filing requirements.

The bill appears to be a direct reaction to the Trump administration’s efforts to roll back record-keeping mandates set during the previous administration. Under the Obama administration, federal OSHA established a 5-year limit for record-keeping violations, however that limit was set aside by a congressional resolution signed by President Trump. The Trump Administration also substantially diminished employer obligations to electronically submit injury and illness data to federal OSHA.

We have frequently blogged on the contentious federal WII Rule.  See Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsAll State Plan Employers are Now Required to Electronically File 2017 Form 300A DataOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA 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.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisKay R. Bonza, and Craig B. Simonsen

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 DataOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA 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.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.