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OSHA: Final Recordkeeping Rule Protects Sensitive Employee Information

Sandy Smith

OSHA has determined that this final Recordkeeping rule will allow the agency to improve enforcement targeting and compliance assistance, protect worker privacy and safety and decrease burden on employers.

In what the agency has stated is an effort “to protect worker privacy,” the U.S. Occupational Safety and Health Administration (OSHA) has issued a final rule that eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.

These establishments are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.  

In a press release, OSHA notes: “By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.”

As a founding partner of Conn Maciel Carey and chair of the firm’s national OSHA Workplace Safety Group, attorney Eric J. Conn focuses exclusively on issues involving occupational safety and health law. He said that while he supports OSHA's decision to not collect 300- and 301-level data, the amended rule does “not go nearly far enough to fix the problems with the E-recordkeeping rule.”

“There should have been some express provision added to prevent the data that is collected from being published, or at least not published along with employer-identifying information,” Conn continued. “They also should have struck the duplicative and unworkable anti-retaliation elements. And they should have modified the definition of high hazard industry to focus on actual high hazard industries, not perfectly average industries like it does now. I would have also liked to see the threshold number of employees to increase from 25, so as not to overburden really small employers.”

OSHA said the amended rule will allow the agency to focus its resources on initiatives that its past experience has shown to be useful, including continued use of information from severe injury reports that helps target areas of concern, and seeking to fully utilize a large volume of data from Form 300A.

The agency also is amending the recordkeeping regulation to require covered employers to electronically submit their Employer Identification Number (EIN) with their information from Form 300A. The final rule’s requirement for employers to submit their EIN to OSHA electronically along with their information from OSHA Form 300A will make the data more useful for OSHA and the Bureau of Labor statistics and could reduce duplicative reporting burdens on employers in the future.

Collection of calendar year 2018 information from the OSHA Form 300A began on Jan. 2. The deadline for electronic submissions is March 2. 

January 24, 2019 @ 01:43 PM EST Manufacturing, Chemical, Energy - Oil and Gas, Construction Health & Safety

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