By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: According to several states that have sued the Occupational Safety and Health Administration in Federal Court, the Agency did not provide sufficient justification to rollback the electronic reporting rule for large employers.  Complaint, State of New Jersey, et al., v. Acosta, No. 19-cv-621 (D. DC March 6, 2019).

The complaint, filed by the States of New Jersey, Illinois, Maryland, Massachusetts, Minnesota, and New York, claims that OSHA’s “illegal and unjustified attempt to rollback its requirements for the public reporting of workplace injuries and illnesses—information that allows states to better design enforcement, outreach, and training programs to improve workplace safety, and that enables employees to protect themselves from risks at work.”

The states allege standing to make the claim based on their “quasi-sovereign interest in the health and safety of all their residents.”  The states also argue that “in making this about-face, OSHA failed to provide the sufficient justification that the Administrative Procedure Act (APA) demands.”  The states claim that “OSHA must ‘provide a reasoned explanation’ for its action, which includes ‘show[ing] that there are good reasons for the new policy’,” citing to Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  “That burden matters especially where the ‘new policy rests upon factual findings that contradict those which underlay its prior policy’.”  Id. at 2126 (quoting Fox Tele. Stations, Inc., 556 U.S. at 515-16).

We have blogged frequently on OSHA’s electronic reporting rule.  See e.g., On And On We Go – Coalition Groups Sue DOL for the Rollback Rule, OSHA Issues New Rule that Companies are Not Required to Submit OSHA 300 and 301 Forms Electronically, California Enacts New Record-Keeping Mandates in Response to Changing Federal ProgramRoller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA 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 this latest action, the six states ask for declaratory judgment that the new final rule is unlawful and a re-imposition of all electronic reporting requirements.

We will continue to watch and report on the ongoing machinations over these rules.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just been sued for removing the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A coalition of groups including the Public Citizen’s Health Research Group (PCHRG), American Public Health Association, and the Council of State and Territorial Epidemiologists filed a complaint against the U.S. Department of Labor and its Occupational Safety and Health Administration.  PCHRG v Acosta, No. 19-CV-166, (D. D.C. January 25, 2019).  The lawsuit challenges OSHA’s decision to amend a 2016 rule on the “Tracking of Workplace Injuries and Illnesses” to remove the requirement that businesses with 250 or more workers electronically submit logs of each on-the-job injury or illness their workers sustain, although these employers must still keep such records on site.

We had recently blogged about OSHA’s just issued final rule (the Rollback Rule) to remove the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 and OSHA Form 301 to OSHA each year.  Under the now amended rules these establishments will still be required to electronically submit information from OSHA Form 300A. 84 Fed. Reg. 380 (January 25, 2019).

The PCHRG suit claims that the Rollback Rule should be declared “unlawful and set aside because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”  According to the lawsuit, “OSHA’s action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Under the current rules, the deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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

By James L. CurtisBenjamin D. Briggs, Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued its final rule that removes the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). 84 Fed. Reg. 380 (January 25, 2019).

In May 2016, under the Obama Administration, the Department of Labor issued a final rule that would have required companies with 250 or more employees to electronically submit their OSHA 300, 301 and 300A forms annually. The information, which would contain summaries of employee names and injuries, would be maintained on government computer systems, but could be requested by third parties such as labor unions, special interest groups, or even competing companies who have an interest in such information.

In light of the legitimate worker privacy concerns, OSHA, under the Trump Administration, in July 2018, issued a proposed rule that would narrow the electronic disclosure rule.  However, some special interest groups, comprised of public-health advocacy groups, viewed the information contained in employers’ OSHA forms as a valuable source of workplace health data.  As such, these groups previously sued to reinstate the final rule that required employers to submit OSHA 300 and 301 forms electronically.  A federal court recently denied that request.

The court in Pub. Citizen Health Research Grp. v Acosta, No. 1:18-cv-01729, 2018 BL 459531 (D.D.C. Dec. 12, 2018), reasoned that the interest groups would have to show “irreparable harm” by not being able to access the OSHA forms to succeed in their lawsuit.  They were unable to show “irreparable harm” because OSHA has issued a notice of proposed rulemaking that narrows the electronic disclosure rule, but could change their mind and ultimately require employers to submit the forms electronically.  As such, the court reasoned, such groups could potentially obtain such information in the future.  Further, the court stated that OSHA’s delay in accepting the OSHA forms does not prevent the special interest groups from conducting the same type of workplace safety research independently.  Because they are not “irreparably” harmed by OSHA’s actions, the Court denied the relief they sought.

Revised Electronic Reporting Requirement

OSHA’s January 25, 2019 final rule limits the electronic submission requirement to the 300A summary for establishments who are required to keep OSHA records and with 250 or more employees.  Establishments with 20 or more (but fewer than 250) employees in certain specified industries (in Appendix A to the regulation) must also submit form 300As.

OSHA believes that this final rule will better protect personally identifiable information or data that may be re-identified with a particular worker by removing the requirement for employers with 250 of more employees to submit their information from Forms 300 and 301 electronically. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

We have blogged frequently on OSHA’s electronic reporting rule.  See California Enacts New Record-Keeping Mandates in Response to Changing Federal Program, Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA 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.

The deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.  Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..”  The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”  The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.”  Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Joshua M. HendersonIlana R. MoradyJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On November 6, 2018, the California Office of Administrative Law approved Cal/OSHA’s emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  Covered employers will be required to submit their Forms to Federal OSHA by December 31, 2018.

As we previously blogged, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline is December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms will need to be submitted by March 2, 2019.

Covered employers in California should submit their 300A summaries by following the instructions on federal OSHA’s Injury Tracking Application webpage.

Although the formal rulemaking process needs to be finalized before the emergency regulations are permanent, including a public comment period and public hearing, employers should plan to meet the upcoming December 31, 2018 deadline.  See any significant changes to the requirements summarized above.

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. MoradyJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: CalOSHA published a news release TODAY, on a new emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  CalOSHA submitted the rule yesterday, and will allow public comments until Tuesday, October 30th, with the intention of adopting it as final by November 5th!

According to CalOSHA, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline would be December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms would be submitted by March 2, 2019.

Cal/OSHA submitted the emergency regulation amending recordkeeping sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations to the Office of Administrative Law (OAL) on October 25.  Interested persons have until “October 30 to submit comments on the proposed emergency regulation.” OAL will have until November 5 to review and adopt or deny the proposed regulation.

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: 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 Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

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.