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: 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.