Most employers know that they need to report on workplace safety to the Occupational Safety and Health Administration (“OSHA”). Last year, OSHA estimates that 3 million workers suffered on the job injuries.

Workplace injury and illness data is usually submitted to OSHA when an OSHA inspection occurs, a fatality or multiple hospitalization event happens or in conjunction with the employer’s annual reports under OSHA’s “Data Initiative.” Under current regulations, such limited data collected by OSHA is generally available to the public but information regarding a specific employer can only be obtained under the Freedom of Information Act (FOIA). Last November, OSHA proposed to change that by requiring employers to submit workplace injury and illness data electronically and by making the data available to the public via a searchable online database. As to the quantity of data collected, currently 38,000 establishments with over 250 employees are required to submit quarterly records of injuries and illnesses to OSHA. Additionally, 440,000 national companies with 20-249 employees (in certain high-risk industries) submit these records annually.

The new rule would require employers to submit injury and illness records electronically as follows:

- Non-exempt employers with 250 or more employees would be required to submit information from the required Part 1904 injury and illness records on a quarterly basis;

- Non-exempt employers with 20 or more employees who are in certain designated industries would be required to submit information from the OSHA annual summary form (Form 300A) on an annual basis; and

- As otherwise notified by OSHA.

OSHA contends that its proposed rule does not add or change any obligation to complete and retain injury and illness records under 29 CFR Part 1904, but, instead, only modifies the manner and timing of certain employers’ obligations to submit such information.

OSHA has provided a mock-up website to illustrate the new reporting process: www.osha.gov/recordkeeping/LDCsys-rulemaking-mockup.pdf.

After registering with the site, employers would be provided a login ID and password.  The website would permit direct data entry as well as batch file uploads.

Searchable Online Database for Public Access to Employer Data

The controversial part of the proposal calls for the data posted by employers to become public.  Although it states that certain data elements will be restricted from publication under FOIA, the Privacy Act and specific provisions within Part 1904, OSHA proposes a searchable online website that would include the following data submitted by employers:

  • OSHA Form 300A (Summary form) – all data fields;
  • OSHA Form 300 (Log) – all data fields except the employee’s name; and
  • OSHA Form 301 (Incident report) – all data fields on the right side of the form (i.e., case number, date of injury or illness, time employee began work, time of event, what the employee was doing just before the incident occurred, what happened, what the injury or illness was, what object or substance directly harmed the employee and the date of death, if applicable).

Another mock-up, (www.osha.gov/recordkeeping/LDCsys-rulemaking-Search.pdf) shows how members of the public would be able to search by company name and view that company’s Form 300 and individual incident reports (Forms 301) as well as the establishment’s workplace injury and illness profile and summary.

OSHA’s proposal asserts that the improved public access to individual employer injury/illness data will help identify workplace hazards and encourage employer to make their workplaces safer for workers. OSHA also anticipates that this information will help it use its resources more effectively by focusing on industries and workplaces posing the greatest risks to employees.

Employer Objections.

Some employer groups have expressed concerns that public access to injury and illness data could result in its’ misuse by the press and the plaintiffs’ bar. Employee privacy with respect to workplace injuries could be affected. Such unfettered access could also result in the underreporting of incidents or downplaying of the severity of injuries. In other situations, an employer’s numbers, standing alone, without explanation of the incident(s), could tarnish its’ reputation. But OSHA contends that the availability of such numbers will give employers with outstanding safety records a competitive advantage.

Next Steps

The public has 90 days, through February 6, 2014, to submit written comments on the proposed rule.

 

In the Spring of 2012, we reported on the new rule adopted by the National Labor Relations Board requiring employers to advise employees of their rights under federal labor laws in a workplace poster.  Since then, two federal appellate courts have struck down the Board’s rule. On January 6, the Board announced that it would not appeal those decisions and would thus repeal the posting rule.  See http://www.nlrb.gov/news-outreach/news-story/nlrbs-notice-posting-rule.

 

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