Hunton Employment & Labor Perspectives

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

OSHA recently issued a Notice of Proposed Rulemaking (“NPRM”) proposing modification to the current rule.  The proposed rule would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  The proposed rule would leave in place the obligation for employers in high risk industries and establishments with 250 or more employees to submit OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).  The rule also proposes to add an obligation to submit employee identification numbers along with the forms to improve the Department of Labor’s ability to cross reference; and, proposes safeguards regarding disclosure of sensitive personal information pursuant to Freedom of Information Act requests (FOIA).

According to OSHA, the proposed rule relieves establishments from burdensome reporting obligations and also better protects “sensitive personal information from potential disclosure under the Freedom of Information Act.”  The deadline for electronic submissions of OSHA Forms 300 and 301 for calendar 2017 was July 1, 2018.  However, during the rulemaking process, OSHA is not accepting Form 300 or 301 data and is not enforcing the deadline.  OSHA is accepting comments on its proposed rule until September 28.