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OSHA Revises, Weakens Recordkeeping Rule

This January, during the longest government shutdown in the history of the U.S., OSHA wasn’t sitting idle. They used that time to reverse portions of the recordkeeping rule that the agency issued back in 2016. At the time, we covered the new Tracking of Workplace Injuries and Illnesses rule in Lifelines, suggesting it would “help bring worker safety and health into the 21st century and provide an incentive for companies to make their workplaces even safer.”

Apparently, the new administration at OSHA disagreed. As of January 25, 2019, employers with 250 or more employees are no longer required to electronically submit information from their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year. This change comes at a convenient time, as the 2016 rule would have required large employers to submit this data electronically for the first time by March of 2019.

Construction employers with 20 or more employees are still required to electronically submit OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The major change from the previous rule is that employers of any size are no longer required to submit the more detailed Forms 300 and 301. It should be noted that this revised rule does not change the requirement for employers to keep and maintain OSHA Forms 300, 300A and 301 on site.

The press release OSHA issued along with the ruling cited concerns over worker privacy as the main reason for the change. Here’s an excerpt:

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. This rule will better protect personally identifiable information … by removing the requirement for covered employers to submit their information from Forms 300 and 301.”

While there’s no doubt that worker privacy is important, it’s unclear how submitting more detailed injury logs would have potentially jeopardized confidential employee information, since the data could have been made anonymous before becoming available to the public. OSHA doesn’t even intend to release the Form 300A summary data, which contains much less information than Forms 300 and 301, for at least four years.

Organizations like Public Citizen have suggested the data supplied by the rule would have been “crucial to protecting worker health and safety and facilitating independent research into workplace hazards.” However, OSHA seems to be adopting a different philosophy. Here’s another excerpt from the press release:

“This rule will allow OSHA to focus its resources on initiatives that its past experience has shown to be useful … rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.”

Regardless of how you feel about electronic reporting, it’s a stretch to say that Forms 300 and 301 are of “uncertain value.” After all, there’s a reason that OSHA requires employers to keep them in the first place. Forms 300 and 301 include the date and location of the injury, a description of the injury and whether the employee spent time away from work following the injury. All of this information is vital in helping employers find patterns and implement changes to safety programs that can prevent future incidents on the job. Why wouldn’t this same information also be vitally important to an agency whose goal it is to protect the safety and health of workers?

By comparison, Form 300A (which many employers are required to submit) contains only summary data, such as the total number of injuries or the number of cases involving days away from work. By collecting only this top-level information, OSHA loses out on the opportunity to find out why an employee was injured and what the company is doing to prevent future injuries. Using only summary data, there’s no way to distinguish between a company that had several injuries in a short period of time before making safety improvements and a company that experiences regular injuries but hasn’t done anything to change their safety procedures. Which of these two workplaces would you rather OSHA choose to inspect?

With the recent decline in the number of OSHA inspectors, it seems obvious that OSHA would benefit from gathering as much workplace injury data as possible. Choosing not to do so in the name of worker privacy may end up hurting worker safety.

[Nick Fox]

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