OSHA Proposes Changes to its Recordkeeping Rules that Would Make Injury and Illness Data Available to the Public

by BakerHostetler

The Occupational Safety and Health Administration (OSHA) issued proposed rules that would require certain employers to electronically submit injury and illness information to OSHA on a periodic basis. Encouraged by President Obama’s Open Government Initiative, OSHA proposes to make this information available to the public via online postings.

The Current Rules

Under the current standard, three categories of employers are required to keep OSHA injury and illness records.  The first category includes employers under OSHA jurisdiction with 11 or more employees, unless the establishment is classified in a partially exempt industry. These partially exempt industries are typically low-hazard, such as retail sales, car dealers, office environments, and the like. The second category of employers required to keep injury and illness records embraces employers with 10 or fewer employees, but only if OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must maintain such records. The third set of establishments required to preserve records comprises those in partially exempt industries if OSHA or BLS informs them in writing that they must keep such records.

The injury and illness records employers are required to keep include the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and the Form 300A (Summary of Work-Related Injuries and Illnesses). Currently, OSHA does not typically acquire the information in these records unless the establishment is inspected by an OSHA compliance officer, or OSHA and/or the BLS request the data from the employer. These recordkeeping rules are found at 29 C.F.R. 1904.

The Proposed Rules

OSHA is proposing three main changes to its recordkeeping regulations. First, establishments that are already required to keep injury and illness records and that had 250 or more employees in the previous calendar year would need to electronically submit information from Forms 300 and 300A to OSHA on a quarterly basis.

Second, establishments that are currently required to keep injury and illness records, that had 20 or more employees in the previous calendar year, and that are in certain “designated industries” would need to electronically submit information annually to OSHA from their Form 300A Annual Summary. There are over 50 designated industries (listed by NAICS code) that OSHA proposes to include in this requirement, such as the utilities, construction, manufacturing, freight trucking, waste collection, home health care, and traveler accommodation industries, among others.

Third, OSHA seeks to require all employers that receive notification from OSHA to electronically submit specified information from Forms 300 and 300A to OSHA or OSHA’s designee as requested.

OSHA’s Rationale

OSHA states that the main purpose of the proposed rulemaking is to improve workplace safety and health through the collection and use of timely, establishment-specific injury and illness data. OSHA believes that by collecting such information, employers, employees, employee representatives, the government, and researchers would be better able to identify and remove workplace hazards. OSHA also maintains that online posting of the injury and illness information would encourage employers to improve and/or maintain workplace safety and health to support their reputations as good places to work.

In addition, according to OSHA, employers could compare injury rates and hazards at their establishments to those at comparable establishments and set workplace safety and health goals relative to the establishments they considered most comparable. OSHA further reasons that uninhibited access to the information would help employers to better identify hazards within their own workplace and to take actions to have the hazards abated.

The Take Away

There are critical ramifications for employers if the proposed rules go into effect. Although the submission of data would not likely be burdensome, the impact of publication could be profound. Every employer required to submit data to OSHA would need to ensure that the information is absolutely accurate.Employers would also need to account for the fact that the press, attorneys, and business competitors would likely make more use of the data than employees or prospective employees.

OSHA is accepting comments on the proposed rules until March 8, 2014.

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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