In keeping with the U.S. Department of Labor’s belief in the “public’s – especially labor unions’ and plaintiff’s attorneys’ – right to know,” the Occupational Safety and Health Administration (OSHA) has issued a revision to its regulations regarding Recording and Reporting Occupational Injuries and Illnesses, benignly titled “Improve Tracking of Workplace Injuries and Illnesses.” Employers should be aware that the substantive issue underlying the revision is not just “reporting” or “tracking”; it is publication!
Rather than simply retaining OSHA Forms 300 (log of incidents), 300A (annual summary of injuries and illness) and 301 (incident report), and making them available to OSHA upon request, employers with more than 19 employees will now be required, depending on size, to submit some or all of these forms electronically. Although the requirements took effect on August 10, 2016, actual electronic data submission does not commence until July 1, 2017, and expands on a graduated basis.
| Submission Year | Employers with 250+ Employees | Employers with 20-249 Employees – in 68 specific industries[1] | Submission Deadline |
| 2017 | Form 300A | Form 300A | July 1, 2017 |
| 2018 | Forms 300A, 300, 301 | Form 300A | July 1, 2018 |
| 2019 and beyond | Forms 300A, 300, 301 | Form 300A | March 2, 2019 (and March 2 of subsequent years) |
No longer will OSHA be dealing with anonymous aggregations of industry-wide accident and illness reports. Following posting of this electronically-submitted data on its website, OSHA claims it will have the country’s largest publicly available data set on work injuries and illnesses – all of which will be searchable and identifiable by employer.
Employers should assume that among the “searchers” will be media, labor unions, competitors and plaintiffs’ attorneys. Labor relations, potential litigation and trade secret issues may all come into play in a broad search of an employer’s OSHA reports by members of the public. Reports setting forth what caused the incident will be considered “admissions” by the company, even if they later turn out to be incorrect. Employers may want to consider how they prepare these reports. Consider limiting reports to the bare facts and leave causation to be argued at a later date.
Even OSHA recognizes that many employers over-report. Employers may want to consider whether that continues to be a good practice. The current regulations require maintenance of the reports for five years. However, once those records have been added to an internet data base, employers should recognize those records as being “permanently available.” This will permit a third party to create a compilation of allegedly similar incidents from 2016 into perpetuity. With that risk in mind, consider these questions:
- Is responsibility for preparing the reports appropriately placed within your organization?
- Should appropriate personnel be trained to adhere more strictly to the regulations in determining what to report?
- Should each report be reviewed to permit deletion of conclusory statements as to “cause”?
HIPAA presents another potential minefield. While OSHA claims that it will delete any personally identifiable data, how reliable is that commitment? If you submit the data and OSHA fails to effectively delete all personal identifiers, what is your responsibility for the prohibited disclosure? Is it possible to develop a reporting process that both complies with the regulations and avoids or minimizes the risk of any inadvertent disclosure of protected employee personal information?
The critical concept for employers is to realize that the new reporting regulations mean that all of their data reported to OSHA will now be available to anyone who wishes to “check it out;” therefore employers should take precautions to mitigate the risks associated with their OSHA data being publicly available.
If you have questions as to how these new requirements might impact your workforce, please call Kathy Mills or Jake Sitman at (610) 797-9000.
