By Eric J. Conn

Who else misses the time when OSHA would issue a new regulation only once every decade or so?!?!  Alas, OSHA has been quite busy the last few months on the rulemaking front, and it doesn’t seem to be slowing down anytime soon.  You’ve heard a lot from us about the various COVID-19 rulemaking efforts – two emergency standards and a new effort to make permanent the COVID-19 standard for healthcare.  Now, OSHA has turned its attention to a more traditional OSHA subject – injury and illness recordkeeping.

Specifically, on March 30^th, OSHA published a new proposed rule to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule; i.e., the Electronic Recordkeeping Rule.

Background on OSHA’s E-Recordkeeping Requirements

OSHA first issued regulations requiring that employers record occupational injuries and illnesses in 1971.  Pursuant to 29 CFR 1904.7, employers must keep records of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.  Additional requirements were added for Reporting of Fatality and Multiple Hospitalization Incidents, and later, in 2014, OSHA expanded the types of incidents that had to be reported to OSHA; i.e., a single in-patient hospitalization, amputations, and losses of an eye. (79 FR 56130)

In 2016 (amended in 2018), annual electronic injury recordkeeping data submissions to OSHA became mandatory both for establishments with 250 or more employees, and establishments with 20-249 employees in certain designated industries.  The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we have chronicled in the past,  the E-Recordkeeping Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers. In a major policy shift, in 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to proactively submit injury and illness data to OSHA through OSHA’s Injury Tracking Application (“ITA”).  More specifically, the 2016 E-Recordkeeping Rule required:

1. 1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
   2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
   3. All submissions to be done electronically, via a purportedly secure OSHA website portal; and
   4. Employer’s injury data to be published in a searchable, public database without scrubbing employer names or location details.

After a couple of years of informal changes through guidance, extended deadlines, legal challenges, and numerous comments requesting significant changes to the E-Recordkeeping Rule, OSHA, then under the Trump Administration, OSHA rolled out its final amendments to the Rule on January 25, 2019.  The Final Rule made the following changes:

1. 1. Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
   2. Require employers to submit their Employer Identification Number (“EIN”) along with the data.

One major rationale for the rollback, which our prior rulemaking coalition advanced, was based on protecting worker privacy by eliminating the electronic collection of case-specific data containing identifying employee information and sensitive health information about specific individuals.  The agency acknowledged then (just three years ago) that collection of such information, which is all over OSHA 300 Logs and 301 Detailed Incident Reports, adds uncertain enforcement value, yet poses a potential privacy risk because, even if the agency successfully scrubbed the portal data to protect this information, it might still be made public pursuant to a FOIA request.  As OSHA stated in the Preamble to the new amended rule:

OSHA has determined that the rule will benefit worker privacy by preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and the body parts affected, and thereby avoiding the risk that such information might be publicly disclosed under [FOIA] or through the Injury Tracking Application. OSHA has also concluded that the extent of any incremental benefits of collecting the data from Forms 300 and 301 for OSHA enforcement and compliance assistance activities is uncertain. OSHA has determined that avoiding this risk to worker privacy outweighs the data’s uncertain incremental benefits to enforcement. The rule will allow OSHA to focus agency resources on the collection and use of 300A data described above, and severe injury reports, as well as data from other initiatives that its past experience has proven useful – instead of diverting those resources toward developing a Web portal for, and then collecting, manually reviewing, and analyzing data from Forms 300 and 301.  

At that time, even though the Rule still permitted OSHA to publish the collected injury data, President Trump’s OSHA declined to do so, and refused to share the data in response to FOIA requests.  The agency indicated that since it was using the data for enforcement purposes (targeting employers to inspect based on the data submissions), it was temporarily exempt from FOIA requests under the active law enforcement exemption.

As a result, in Public Citizen Foundation v. Dept. of Labor, public interest group Public Citizen filed a successful lawsuit in the U.S. District Court for the District of Columbia, challenging OSHA’s justification for not publishing or producing already-collected data in response to a Freedom of Information Act (“FOIA”) request.  Trump’s OSHA ultimately published all of the data it had been collecting pursuant to the E-Recordkeeping Rule, and will no doubt continue to do so under the Biden Administration, and will likely develop a more “user friendly” interface.

OSHA’s New E-Recordkeeping Proposal

Fast forward to 2022 and the return to a Democratic Administration, and, like so many other areas of public policy, we are seeing Biden’s OSHA push to undo the Trump Administration’s rollbacks.  But in the context of the E-Recordkeeping Rule, the new Administration does not seem content to just rollback changes from the prior administration, but is set on over-compensating; i.e., pushing the E-Recordkeeping Rule even further than when it was first issued during the Obama Administration.

Under the new proposed amendments to the E-Recordkeeping Rule:

• • There will be a new requirement for establishments with 100 or more employees in certain designated high hazard industries (see new Appendix B in the proposed rule) to annually electronically submit to OSHA the information from their full panoply of OSHA recordkeeping records – i.e., OSHA Forms 300 (the OSHA Log), 301 (individual incident reports for each injury recorded on the 300 Log), and 300A (the Annual Summary Report of recorded injuries).
  • The current requirement for all establishments with more than 250 employees to electronically submit the 300A log would be eliminated.
  • Establishments with 20 or more employees in certain high-hazard industries will still be required to electronically submit information only from their OSHA Form 300A annual summary, and the list of covered industries for that group (new Appendix A) has also been rejiggered.
  • Establishments will be required to include their company name with the electronic data submissions.

Why Is This Rulemaking Important?

Thousands more establishments will be covered by this proposed amended E-Recordkeeping Rule, as the trigger will be 100 employees (rather than 250 employees), and the scope of data required for submission is significantly greater and significantly more invasive.  300A Annual Summary data is pretty barebones – just the number of recordable cases, total manhours worked, and the total number of cases meeting various recording criteria.  Along with 300 Log and 301 Report level submissions will be data at the individual recordable cases, with employee names, details about the parts of their bodies that were injured, information about their medical treatment – an entirely differently kind of look under the hood than the last five years under this rule.

Many of our clients that are national employers have shared remarkable stories about how much time and resources it takes to make the annual submission of just the 300A level data.  We expect you could at least quadruple that burden to account for the additional scale of the data submissions under this rule.  OSHA estimates that the total private-sector cost for adherence to the new rule would be $3,941,741 annually, which is a plenty big number, but seems to be an obvious, gross underestimate based on what we have learned from the first few years of E-Recordkeeping.

Moreover, OSHA intends to utilize the data collected electronically for targeted enforcement activities.

What Happens Next?

OSHA has requested public comments on this new proposal to be submitted by May 31, 2022.  As we have had to do too many times the last couple of years, Conn Maciel Carey’s OSHA Team is organizing another fee-based rulemaking coalition of employers and trade groups to collaborate to work on these comments and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

As indicated in public comments that Conn Maciel and Carey submitted in 2018 on earlier OSHA proposed regulations, we expect to address, among other important concerns, that:

1. 1. OSHA will use this electronic data for enforcement targeting, even though the criteria for recording illness and injuries neither assumes nor requires any correlation between the injury and regulatory non-compliance or any employer fault.  This is even more important now, because some employers are recording hundreds of COVID-19 cases even when work-relatedness is uncertain.
   2. Much of the detailed data is unnecessary to OSHA and will create significant burden for employers.
   3. OSHA is not capable of protecting employees’ confidential personal and medical information.  Electronic collection of Forms 300 and 301, and making the data publicly available on a searchable database will unnecessarily expose the personal information of employees to both intentional and inadvertent disclosure.
   4. Add some express provision(s) to prevent all or some of the collected data from being published, or at least not published along with employer-identifying information (i.e., precisely how BLS handles the injury data it has collected for decades).
   5. Further recalibrate the definition of “high hazard industry” such that that the rule will not cover thousands of small employers in industries with essentially average DART rates (i.e., set the trigger for “high hazard” at the same level that OSHA has always used for its SST program.
   6. Eliminate the 25 -100 employee data collection category.
   7. Other important issues for which we need more industry input.

Please contact Eric Conn, Chair of Conn Maciel Carey’s national OSHA Practice, if you have any questions about the rulemaking process, the proposed amendments to the rule, or the plans for our industry rulemaking coalition, and please let us know as soon as possible if your organization is interested in participating.  We expect to have several virtual meetings in April and early May to share more background about the rulemaking and to solicit information from our participating members about their experiences with the current E-Recordkeeping Rule and the likely impacts of the proposed amendments.