On July 30, 2018, the Occupational Safety and Health Administration (“OSHA”) announced a Notice of Proposed Rulemaking (NRPM) in the Federal Register to revise an Obama Administration regulation, Improve Tracking of Workplace Injuries and Illnesses. The proposed rule repeals the requirement for businesses with 250 or more workers to electronically submit information from the OSHA 300 log and 301 Form and adds an additional requirement for covered businesses to submit their Employer Identification Number (EIN).
OSHA has proposed to do away with the requirement due to the potential risk of private worker information leaking and the dearth of unknown enforcement benefits from compiling the 300 Log and 301 Form. OSHA noted in the Federal Register that, “OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable under FOIA (Freedom of Information Act).”
Moreover, OSHA is submitting a requirement for employers to include their EIN to decrease duplicative reporting. OSHA further noted in the Federal Register that, “Collecting EINs would increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness (SOII).”
The new proposal by OSHA raises the following concerns: 1) exactly what risks have been identified by the Agency?; 2) How likely are these risks to occur?; 3) Is OSHA able to make these threats less likely?; and, 4) Do the benefits of electronically processing this information outweigh the identified risks?
Also of note, the recent NRPM was curiously silent on one subject that many believed would be addressed by OSHA in their new proposals – retaliatory conduct towards employees. The NRPM does not discuss the Agency’s anti-retaliation provisions including whether certain employer protocols are considered unreasonable and discourage employees from reporting injuries and illnesses. OSHA recently posited publicly that practices such as drug testing and safety incentive programs were not allowed under this rule. OSHA’s decision to not address this concern means that employers remain subject to regulation for such alleged retaliatory conduct despite Congressional intent that Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) provide the exclusive remedy for employees who experience said conduct. The NRPM’s silence on the topic will continue to cast ambiguity moving forward.
OSHA unequivocally noted in the NRPM that the Agency would only field comments on the electronic collection and EIN reforms and “not on any other aspects” of the OSH Act. Thus, the Agency has signaled that change to the Obama Administration anti-retaliation requirements is unlikely, despite strong objection from employers.