A 2019 L&E Forecast for In-House Counsel, Part I: A Workplace Safety Issue on the Horizon

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

In 2019, general counsels can expect the debate to rage on over the Occupational Safety and Health Administration’s (OSHA) proposal to rescind the requirement that large employers electronically submit information from OSHA Forms 300 and 301, which contain individual employees’ private medical history data. The agency introduced this proposal at the end of July 2018, and the comment period closed on September 28, 2018, with more than 1,800 comments submitted.

Employers celebrated OSHA’s decision to scale back the administrative burden imposed by the previous rule, which would have required large employers to submit hundreds of pages of documents electronically to the agency. The previous rule also stood at odds with OSHA’s historical perspective on recordkeeping data and privacy concerns.

Not surprisingly, labor unions decried OSHA’s proposal as “cynical.” Unions minimized privacy concerns over access to individual employee data as “unfounded,” claiming the government can adequately protect private data. But as 21.5 million people affected by the Office of Personnel Management 2015 data breach can attest, the government does not have the best track record in this area.

A compounding matter is a lawsuit filed by Public Citizen against OSHA for Freedom of Information Act (FOIA) access to the Form 300As electronically submitted to the agency in 2017. The case remains pending in federal court in Washington, D.C. If employers were required to submit Forms 300 and 301, groups like Public Citizen would likely also sue for FOIA access to those records.

OSHA expects to submit a final rule by June 2019. OSHA’s final decision on this issue will undoubtedly generate a challenge in litigation.

Part two of this series covers New York State’s New Sexual Harassment Law. Stay tuned!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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