On July 30, 2018, the Occupational Safety and Health Administration (“OSHA”) published a notice of proposed rulemaking aimed at rolling back electronic reporting requirements that were implemented under a rule issued during the Obama administration (“Electronic Reporting Rule”). The Electronic Reporting Rule required employers with 250 or more employees, as well as employers in high risk industries, to electronically submit OSHA Form 300A (annual summary of work-related injuries and illnesses) by the end of 2017, and OSHA Forms 300 (log of injuries and illnesses) and 301 (injury and illness incident reports) by July 1, 2018.
In general, OSHA previously obtained the information in each of the three forms on an ad hoc basis by requesting the forms from employers during on-site inspections. Under the Electronic Reporting Rule, OSHA sought to more formally gather and publicly disclose such injury and illness data by systematically collecting safety information from employers and posting it on OSHA’s website. Essentially, OSHA sought to compel compliance with safety regulations by publicly shaming employers through the disclosure of all injuries and illnesses occurring at an employer’s facilities—regardless of the circumstances underlying such incidents.
The Electronic Reporting Rule proved extremely unpopular with employers for a variety of reasons. Employers felt the wholesale public disclosure of this information would not accurately reflect the existence and effectiveness of safety programs in place at facilities or actual compliance with OSHA requirements. Many viewed the rule as a gift from the Obama administration to unions engaging in organizing campaigns and tort lawyers seeking to extract increased settlements. Within the employment community, there was also general skepticism that the rule was truly aimed at encouraging greater compliance and a belief that it would instead be used as an enforcement tool.
Employers also expressed concern regarding the probable disclosure of employees’ personally identifiable information and general medical information. OSHA Forms 300 and 301 require employers to include an employee’s name and address, date of birth, and description of the injury or illness, among other data. While claiming that it did not intend to disclose the personally identifiable information contained on OSHA Form 301, OSHA indicated that all fields on OSHA Forms 300 and 300A would be made publically available under the Electronic Reporting Rule.
Following the change in administrations, OSHA pushed back the initial deadline for employers to file the Form 300A and also indicated that it would likely seek to reconsider, revise, or remove provisions from the Electronic Reporting Rule in 2018. In May of this year, OSHA suspended the July 1, 2018 deadline for submitting OSHA Forms 300 and 301, and announced that it would not accept electronic submission of the forms from employers.
The announcement resulted in Public Citizen, a progressive consumer advocacy group originally founded by Ralph Nader, joined by two other public health groups, filing suit against OSHA in the U.S. District Court for the District of Columbia. In the lawsuit, the plaintiffs argued that OSHA violated the law by suspending the Electronic Reporting Rule’s July 1, 2018 deadline and sought to compel OSHA to implement and enforce all requirements of the rule.
Less than a week after the lawsuit was filed, on July 30, 2018, OSHA published a proposed rule that would rescind the requirement that employers electronically submit OSHA Forms 300 and 301. The proposed rule, however, would still maintain the requirement that employers with 250 or more employees electronically file Form 300A with OSHA. Thus, as the rulemaking process plays out, the deadline for electronic submission of OSHA Forms 300 and 301 remains suspended while the requirement to submit OSHA Form 300A remains in place. Regardless of any final changes to the Electronic Reporting Rule, employers still must maintain all three forms under existing requirements and produce the forms to OSHA upon request during inspections.