On July 26, the day after a new lawsuit was filed to challenge its suspension of parts of the final electronic recordkeeping rule, OSHA announced plans to issue a Notice of Proposed Rulemaking (NPRM) “to better protect personally identifiable information or data that could be re-identified with a particular individual” by removing certain provisions of the 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. OSHA’s NPRM was published in the Federal Register’s on July 30.
The May 2016 final rule, Improve Tracking of Workplace Injuries and Illnesses, requires 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. The plaintiffs in the lawsuit, Public Citizen, the American Public Health Association, and the Council of State and Territorial Epidemiologists, have challenged OSHA’s May 2018 announcement on its website that it would not accept OSHA Forms 300 and 301.
Proposed revision. OSHA initially made its NPRM available on its website for “informational purposes only” until the official version is published in the Federal Register. The NPRM states that the agency is rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. However, these establishments will continue to be required to submit information from their Form 300A summaries.
Privacy versus data benefits. The agency said that it is amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act. OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified, given the “uncertain benefits” of collecting the information. OSHA believes that its proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule.
The plaintiffs in the lawsuit, however, see a clear benefit from making the data available. Public Citizen noted that in the past, OSHA’s data has been used to prepare reports on the agency’s enforcement actions, draft a comment on OSHA’s workplace beryllium exposure rule, and petition the agency for a rule on workplace heat stress. When it issued the electronic recordkeeping rule, OSHA had indicated that the data it collected would be posted online, where it could be accessed and studied by the public.
Comments. OSHA is soliciting comments on its proposed revision of the rule, particularly about its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure. In addition, OSHA is proposing to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission. Comments must be submitted within 60 days after the NPRM is published in the Federal Register.
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