Employment Law Daily OSHA final rule revises electronic illness and injury recordkeeping requirements
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Monday, January 28, 2019

OSHA final rule revises electronic illness and injury recordkeeping requirements

By Pamela Wolf, J.D.

OSHA’s final rule rescinds the requirement that establishments with 250 or more employees electronically submit illness and injury data on Forms 300 and 301, and adds the requirement that Employer Identification Numbers be submitted along with data submitted electronically.

OSHA has released its final rule, “Tracking of Workplace Injuries and Illnesses,” which to protect worker privacy, according to the agency, amends the electronic recordkeeping regulation by rescinding the requirement that establishments with 250 or more employees must electronically submit information from OSHA Forms 300 and 301. These establishments will still be required to maintain those records on-site, and OSHA will continue to obtain them as needed through inspections and enforcement actions. Establishments will also be required to continue submitting information from their Form 300A, according to the final rule notice published in the Federal Register January 25, 2019.

EIN required. The federal safety and health agency also is amending the recordkeeping regulation to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission, which the agency says will facilitate use of the data and may help reduce duplicative employer reporting.

OSHA stressed that nothing in the final rule revokes an employer’s duty to maintain OSHA Forms 300 and 301 for OSHA inspection. All of these new actions together will permit OSHA to “improve enforcement targeting and compliance assistance, decrease burden on employers, and protect worker privacy and safety.”

Earlier suspension challenged. On July 26, 2018, the day after a new lawsuit was filed to challenge OSHA’s suspension of parts of the Obama-era final electronic recordkeeping rule, the agency announced plans to issue the proposal for this latest final rule “to better protect personally identifiable information or data that could be re-identified with a particular individual” by removing certain provisions of the May 2016 final rule. The complaint alleged that the agency violated the Administrative Procedure Act when it previously suspended these same requirements without public notice and an opportunity to comment.

The May 2016 final rule, Improve Tracking of Workplace Injuries and Illnesses, before its revision, required covered workplaces to submit certain 2017 work-related injury and illness data to the agency by July 1, using OSHA Forms 300, 301, and 300A. The rule is intended to help the agency monitor and prevent workplace injuries and illnesses.

Move to protect privacy. In issuing its final rule revising certain electronic recordkeeping requirements, OSHA determined that the regulatory action “will benefit worker privacy by preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and the body parts affected, and thereby avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA) or through the Injury Tracking Application.”

Benefits vs. risks. OSHA also said that the extent of any incremental benefits of collecting the data from Forms 300 and 301 for OSHA enforcement and compliance assistance activities is “uncertain.” The agency determined that avoiding this risk to worker privacy outweighs the data’s uncertain incremental benefits to enforcement.

Better use of resources. Among other things, the final rule’s recordkeeping revisions will permit OSHA to focus agency resources on the collection and use of 300A data and severe injury reports, as well as data from other initiatives that past experience has proven useful—instead of diverting those resources toward developing a Web portal for, and then collecting, manually reviewing, and analyzing data from Forms 300 and 301, according to the agency.

The final rule revising electronic recordkeeping requirements is effective 30 days after publication in the Federal Register.

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