The Occupational Safety and Health Administration (OSHA) has proposed changes in injury and illness reporting that would require employers to file their reports electronically, which could end up in making it easier for the public to access these reports online—including tort lawyers and union organizers.
The same sort of change was proposed during the Obama administration but withered after Donald Trump became President. Critics say posting these reports for everyone to see will make companies targets for organized labor and turn attorneys hunting for liability lawsuit clients into high-tech ambulance chasers.
OSHA’s explanation of its motivation behind the proposal appears to bear this out: “The expanded public access to establishment-specific, case-specific injury and illness data would allow employers, employees, potential employees, employee representatives, customers, potential customers, researchers and the general public to make informed decisions about the workplace safety and health at a given establishment, and this accessibility will ultimately result in the reduction of occupational injuries and illnesses.”
Andrew C. Brought, an attorney with the law firm of Spencer Fane, points out, “While this data is already subject to FOIA [Freedom of Information Act], OSHA’s intent to make the data available in a searchable online database presents a significant transformation in how the general public, competitors and employees can access the data.”
Attorneys for the law firm of Seyfarth Shaw also note, “Many in the regulated community have criticized the new rule on the basis of potential public disclosures of employee health information.” To address concerns regarding employee privacy, OSHA has announced that it will use artificial intelligence software to identify and redact employee names but leave all references to employee health information.
Under the proposed rule, employers in high hazard industries who have 250 or more employees will not be required to file their 300A reports electronically because they already must routinely keep OSHA injury and illness records in this manner. However, the new rule will increase the burden on other employers with more than 100 employees in the same designated high-hazard industries.
The agency claims that the proposed rule also will improve its ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk, the Seyfarth Shaw attorneys explain. By doing so, OSHA stressed that the change will advance its mission to empower workers by increasing transparency in the workforce.
Specifically, the proposed rule would:
• Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year.
• Update the classification system used to determine the list of industries covered by the electronic submission requirement.
• Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
• Require establishments to include their company name when making electronic submissions to OSHA.
In addition, establishments that have 20 or more employees that are in the designated high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA.
However, the recently released guidance memo shows another way the agency will make use of the data it gathers for enforcement purposes when it comes to tracking down those employers who have failed to submit their annual Form 300A reports and targeting them for enforcement action.
Under the agency’s plan, each week the OSHA headquarters office responsible for statistical analysis will look through inspections opened during the previous week and not yet closed. It will match the open inspections list against a list of establishments that may have failed to submit their 2021 Form 300A data and then create a list of potential non-responders by area office, and forward a weekly report of the results to those area offices.
