OSHA Issues Final Rule to Protect Privacy of Workers under Tracking of Workplace Injuries and Illnesses Rule

On Jan. 25, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule to better protect personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the “Improve Tracking of Workplace Injuries and Illnesses” rule. OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

The final rule becomes effective on Feb. 25, 2019.

The final rule eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year. These establishments are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

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 (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a worker by removing the requirement for covered employers to submit their information from Forms 300 and 301. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

OSHA stated that this rule will allow the agency to focus its resources on initiatives that its past experience has shown to be useful—including continued use of information from severe injury reports that helps target areas of concern, and seeking to fully utilize a large volume of data from Form 300A—rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.

The agency is also amending the recordkeeping regulation to require covered employers to electronically submit their Employer Identification Number (EIN) with their information from Form 300A. The final rule’s requirement for employers to submit their EIN to OSHA electronically along with their information from OSHA Form 300A will make the data more useful for OSHA and the Bureau of Labor Statistics, and could reduce duplicative reporting burdens on employers in the future.

Collection of Calendar Year 2018 information from the OSHA Form 300A began on Jan. 2, 2019; the deadline for electronic submissions is March 2, 2019.

Background

OSHA’s regulation at 29 CFR part 1904 requires employers to collect a variety of information on occupational injuries and illnesses. Much of this information may be sensitive for workers, including descriptions of their injuries and the body parts affected. Under OSHA’s regulation, employers with more than 10 employees in most industries must keep those records at their establishments. Employers covered by these rules must record each recordable employee injury and illness on an OSHA Form 300, the “Log of Work-Related Injuries and Illnesses,” or equivalent. Covered employers must also prepare a supplementary OSHA Form 301, the “Injury and Illness Incident Report” or equivalent, to provide additional details about each case recorded on the OSHA Form 300. OSHA requires employers to provide these records to others under certain circumstances but imposes limits on the disclosure of personally identifying information. At the end of each year, these employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, the “Summary of Work-Related Injuries and Illnesses,” and post the form in a visible location in the workplace.

Form 301 requires the collection of much sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent.  Some of the information is likelier to be regarded as particularly sensitive.

Form 300 requires employers to log much of this individual information—notably, descriptions of injuries and the body parts affected—for each individual worker and incident. Form 300A, by contrast, merely summarizes incident data without any traceable connection to individual workers.

Contact ACA’s Riaz Zaman for more information.

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