As the world continues to focus its attention on all things COVID-19 related – especially as the Centers for Disease Control and Prevention learns more and more about the virus and updates its guidelines — earlier this month, OSHA quietly published a treasure trove of employer injury and illness data as part of its Tracking of Workplace Injuries and Illnesses Rule (aka the “E-Recordkeeping Rule”). The move comes after numerous attempts by OSHA under the Trump Administration to delay and narrow the requirements set forth in the original E-Recordkeeping Rule promulgated by OSHA in May 2016 during the final year of the Obama Administration, and also attempts by Trump’s OSHA to withhold from disclosure, even pursuant to FOIA requests, the injury and illness data collected pursuant to the Rule since 2016.
History of E-Recordkeeping Rule
The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we previously posted here on the OSHA Defense Report, the 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, on May 11, 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to submit injury and illness data through OSHA’s Injury Tracking Application (“ITA”). At that time, the Rule also included a provision in which employer injury and illness data would be made available to the public on a searchable online database without scrubbing employer names or location details.
More specifically, the 2016 E-Recordkeeping Rule required:
- 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;
- Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
- All submissions to be done electronically, via a purportedly secure OSHA website portal; and
- Employer’s injury data to be publicized in a “user-friendly” database for all the world to see.
There were numerous legal challenges to the Rule, some of which are still being litigated. Continue reading