OSHA Final Rule Revises Electronic Reporting Requirement

By Glenn A. Duhl, Esq.

keyboard-reporting-buttonOn January 24, 2019, the Occupational Safety and Health Administration (OSHA) published a final rule eliminating the requirement for employers with 250 or more employees to electronically submit worker injury and illness information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report). Aimed at protecting the privacy of workers, the new final rule requires only that those employers electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA annually.

Originally established in January 2017, the requirement for employers to submit Forms 300 and 301 was met with significant criticism. Employers were concerned that such detailed and specific data about employee injuries would be available to the public, labor unions, and competitors, and could place an employer at a competitive disadvantage.

The new rule does not eliminate an employer’s obligation to complete and retain Forms 300 and 301 in the regular course of business; rather, it eliminates the requirement to submit those forms electronically on an annual basis. OSHA may still use these forms during onsite investigations and enforcement actions, and employers are still required to retain such records for a period of five years.

OSHA noted that, by “preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA).”

However, OSHA already has measures in place to protect against the disclosure of employees’ sensitive personally identifiable information. Employers are instructed not to enter the employee’s name on Form 300 for “privacy concern cases.” A privacy concern case is one that involves:

  1. an injury or illness to an intimate body part or to the reproductive system;
  2. an injury or illness resulting from a sexual assault;
  3. a mental illness;
  4. a case of HIV infection, hepatitis, or tuberculosis;
  5. a needlestick injury or cut from a sharp object that is contaminated with blood or other potentially infectious material; or
  6. other illnesses, if the employee independently and voluntarily requests that his or her name not be entered in the log.

When faced with a privacy concern case, OSHA requires the employer to enter “privacy case” in the space normally used for the employee’s name on Form 300 and to keep a separate, confidential list of the case numbers and corresponding employee information. Proponents of the new rule, however, argue that the privacy concern cases protections do not reach far enough, as FOIA provides that any person has the right to request access to OSHA records or information because it is a federal agency.

Critics of the new final rule, including various labor unions that fought to have OSHA include Forms 300 and 301 in its original electronic recordkeeping rule issued in May 2016, argue that the rollback of this requirement will hamper OSHA’s efforts to refine targeting systems by analyzing accident frequencies and trends in various categories, including that of standard industrial classifications. They argue that it will be more difficult for OSHA to identify trends in workplace safety (common injuries, instrumentalities, persons involved, etc.) if only the summary forms, rather than the detailed logs, are required to be submitted annually. As Rep. Bobby Scott (D-VA), chairman of the House Education & Labor Committee, stated, “By rolling back the requirements for companies to report serious work-related injuries and illnesses that occur in their workplaces, the [current] administration is weakening our ability to identify and address issues that threaten the lives and livelihoods of workers and their families.”

Despite the lack of a legal requirement to electronically submit OSHA Forms 300 and 301, given the likelihood that litigation will ensue as to the new final rule, employers are encouraged to diligently maintain such forms in the event their establishment is investigated by OSHA.

Employers are required to record information about every occupational fatality, and all nonfatal occupational injuries and illnesses that involve any of the following must also be recorded:

  • loss of consciousness,
  • day(s) of restricted work (including light duty work),
  • job transfer,
  • day(s) away from work,
  • medical treatment beyond first-aid, and/or
  • a significant injury or illness diagnosed by a physician or other licensed health care professional.

It is the best practice to record any injury or illness requiring first aid and be precise in the description of illness or injury recorded in the log. If it is relevant, it is also wise to list the object or substance that directly injured or made the employee ill.

Glenn A. Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.

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