Today OSHA formally published a Notice of Proposed Rulemaking (NPRM) in the Federal Register revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses. The proposed rule rescinds the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 Form and adds a requirement for covered establishments to include the Employer Identification Number (EIN) with their submissions.

Due to the potential risk of disclosure of private employee information and the lack of uncertain enforcement benefits from collecting the 300 Log and 301 Form, OSHA is proposing to eliminate that requirement.  In the Federal Register OSHA noted,

The injury and illness data electronically submitted to OSHA from Form 300A…gives OSHA a great deal of information to use in identifying high-hazard establishments for enforcement targeting. To that end, OSHA has designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses based on the summary data.  By contrast, OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable under FOIA [Freedom of Information Act].

Further, OSHA is proposing to add a requirement for employers to include their EIN in an effort to avoid duplicative reporting.

Collecting EINs would increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness (SOII).

OSHA has specifically raised the following questions:

1. What risks to worker privacy are posed by the electronic collection of information from Forms 300 and 301 from establishments with 250 or more workers?  How likely are these risk to materialize?  How could OSHA make them less likely, and what resources would be required? Given the limitations identified above, what are the benefits of electronically collecting this information?
2. Besides the Bureau of Labor Statistics, what other agencies or organizations in the public and private sectors use automated coding (autocoding) systems for text data in data collections?
3. Besides the Department of Health and Human Services, what other agencies and organizations in the public and private sectors use automated de-identification systems to remove PII from text data before making the data available to the public? What challenges have they faced in using those systems to keep PII protected?
4. Would employers required to electronically report information to OSHA under part 1904 consider the EIN to be exempt from disclosure [under FIOA], either as confidential business information of for another reason? Are there any circumstances where the EIN would be considered Personally Identifiable Information (PII)? OSHA also seeks comments on privacy concerns that might arise from employers submitting their EIN.

Unfortunately, the proposed regulation does not address the anti-retaliation provisions including whether certain policies are considered unreasonable and deter employees from reporting injuries and illnesses and therefore are in violation of the rule.  The agency had previously vocalized that policies such as certain drug testing and safety incentive programs were prohibited under the rule. As such, that employers would be subject to citations for such allegedly discriminatory policies despite Congressional intent that Section 11(c) of the OSH Act provide the exclusive remedy for employees who experience retaliatory and discriminatory conduct in relation to safety and health.

OSHA made clear in the proposed rule that the agency was only seeking comments on the electronic submission and EIN and “not on any other aspects of part 1904.”  This signals OSHA is unlikely to change those Obama-era requirements despite significant objection from the employer community.

Public comments are due 60 days from today’s publication, September 28.

In a May post we noted that OSHA had moved closer to publishing a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses by submitting the proposed rule to the Office of Management and Budget (OMB) for review under Executive Order 12866.  This review was completed yesterday, July 23, and now signals that OSHA has jumped the final hurdle before it can publish a new proposed rule.  In the Spring Regulatory Agenda, OSHA identified July as its target date for issuance of a Notice of Proposed Rulemaking.  OMB’s completition of its review suggests that OSHA will likely issue a proposed rule in the Federal Register soon, possibly making its projected timeframe.

It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit the establishment’s OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. In the Spring Regulatory Agenda, OSHA stated,

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A big issue of interest to employers will be whether the  proposed changes contain revisions to the “anti-retaliation” provisions of the regulation.  Specifically, the current regulation allows OSHA to cite an employer for having policies or procedures that may discourage employees from reporting a work-related injury or illness, which some stakeholders argue is in conflict with the OSH Act and Congressional intent with the whistleblower provisions under Section 11(c).

Employers should follow this rulemaking carefully as it is likely to change the requirements for the electronic submission of recordkeeping forms.  All covered employers were required to submit their 2017 300A Form electronically through OSHA’s Injury Tracking Application by July 1, 2018. Employers can continue to electronically report their 2017 300A Form to OSHA, but submissions after July 1, 2018 will be flagged by OSHA as “Late”.