Citing a concern over potential public disclosure of sensitive worker information, the Occupational Safety and Health Administration (OSHA) recently eliminated a requirement that businesses with 250 or more employees electronically submit annual reports on every employee injury or illness.
The move reverses a rule put in place by the Obama Administration in 2016 and the change is being opposed in court by a handful of states that say the rollback is illegal and unjustified, the data is needed to prevent workplace injuries, and there is no privacy threat.
While OSHA has now lifted the annual electronic reporting requirement for Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), businesses with 250 or more employees will still have to maintain the completed forms with the information on their sites and make them available for any OSHA inspectors.
These business will also still be required to electronically submit information on the OSHA form (300A) that is a summary of work-related injuries and illnesses but that does not contain detailed logs.
“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,” the agency said.
“This rule will better protect personally identifiable information or data that could be re-identified with a particular worker,” OSHA stated.
OSHA said it also believes its new rule will allow it to “improve enforcement targeting and compliance assistance, protect worker privacy and safety, and decrease burden on employers.”
But six state attorneys general maintain the reversal of the reporting requirement lacks valid rationale and legal basis. They say the OSHA forms do not contain any personally identifiable information. They also maintain that when the 2016 rule was devised, privacy concerns were addressed and OSHA took certain steps, such as declining to collect employee names or the names of their physicians, to reflect a need to protect privacy.
The states want the court to vacate the new rule, as well as order OSHA to immediately implement all aspects of the 2016 rule and award the plaintiff states reasonable costs including attorneys’ fees.
The states of New Jersey, Illinois, Maryland, Massachusetts, Minnesota and New York filed their lawsuit March 6 in the U.S. District Court for the District of Columbia. The complaint seeks an injunction against Secretary of Labor Alexander Acosta, Loren Sweatt, acting assistant secretary of labor for OSHA, the U.S. Department of Labor and OSHA.
The states’ complaint criticizes OSHA for an “about face” on what they see as “an essential tool” for the tracking of workplace hazards and dismisses as “illogical” OSHA’s allegations that the reporting requirement could create privacy risks.
“This rollback will make workplaces more dangerous and result in more workers being hurt on the job,” Massachusetts Attorney General Maura Healey said in a press release issued by her office.
The six states argue that their proprietary interests and quasi sovereign interests are directly harmed by the 2019 final rule.
OSHA’s initial 2016 rule required all large employers to submit information annually from three different workplace injury and illness tracking forms that employers were already required to maintain. The administration at that time said this move was being taken to help OSHA and states better target their workplace safety enforcement programs, encourage employers to abate these hazards, empower workers to identify risks and provide information to researchers who work on occupational safety and health, according to the complaint.
Prior to the 2016 rule, employers were required to record and maintain all of the information in the tracking forms and make them available to OSHA or state inspectors upon request. The 2016 rule instead required employers with 250 or more employees to file the forms with OSHA electronically.
OSHA was supposed to begin collecting information on the Annual Summary Form 300A – which provides a summary of work-related injuries and illnesses – on July 1, 2017. The more detailed information in Forms 300 and 301- which respectively provide a log of work-related injuries and illnesses and an injury and illness incident report – was to be collected on July 1, 2018.
On July 30, 2018, however, OSHA proposed to amend the 2016 rule, and on January 25, 2019, OSHA published a final new rule, reversing its position regarding the benefits and risks of requiring large employers to electronically submit information from the tracking forms and contending that the costs of collecting the detailed information outweigh the benefits.
However, in their complaint, the six state attorneys general argue that the information regarding workplace injuries and illnesses and the events surrounding them is necessary for policymakers, program developers and researchers in the states to understand the causes of workplace injuries and illnesses and to design their training, outreach and enforcement programs to improve workplace safety and health.
The attorneys general maintain that in replacing the 2016 rule with the new rule, OSHA “did not even come close to justifying its views that the reporting of workplace injuries and illnesses has few benefits to states, workers, and researchers, or that it puts workers’ privacy at risk.”
“Data on occupational injuries and fatalities is a critical to ensuring healthy and safe workplaces,” said Jodi Sugerman-Brozan at the Massachusetts Coalition for Occupational Safety and Health. “If we don’t understand what is hurting, or worse, killing workers, we can’t take action to reduce those hazards.”
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