By Benjamin D. Briggs, A. Scott Hecker, Adam R. Young, Mark A. Lies, and Craig B. Simonsen
Seyfarth Synopsis: The Occupational Safety and Health Administration is proposing to amend its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The current regulation requires certain employers to electronically submit injury and illness information – that they are required to maintain – to OSHA. The agency uses these reports to identify and respond to emerging hazards and makes aspects of the information publicly available.
In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses, the proposed rule would require certain establishments in certain high-hazard industries to electronically submit additional information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report.
The Agency claims that the rule will improve OSHA’s ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk. OSHA also believes that the proposed rule will also advance OSHA’s mission to empower workers by increasing transparency in the workforce.
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.
Establishments with 20 or more employees in designated high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.
Many in the regulated community have criticized the new rule on the basis of potential public disclosures of employee health information. OSHA has announced that it will use artificial intelligence software to identify and redact employee names, but leave all references to employee health information. Approximately three years ago, OSHA credited these privacy concerns in issuing its January 25, 2019 final rule limiting submission to Form 300A, noting in the summary of that rule: “[s]uch submissions provide OSHA with ample data that it will continue seeking to fully utilize.”
Submit comments online using Docket No. OSHA-2021-0006 on the Federal eRulemaking Portal. Read the Federal Register notice for details. Comments must be submitted 60 days after Mach 30, 2022, when the proposed rule was published in the Federal Register.
For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.