On November 8, 2013, the Occupational Safety and Health Administration (“OSHA”) issued a proposed regulation, Improve Tracking of Workplace Injuries and Illnesses that would require employers, for the first time, to submit workplace injury and illness data in electronic form to OSHA. In addition, the data submitted to OSHA would them become public record. OSHA will accept public comments on the proposed regulation until February 6, 2014.
As most employers are aware, the current regulations require most employers to record and maintain workplace injury and illness data using OSHA Form 300 and 300A. However, employers are not currently required to submit the data 300 and 300A forms to OSHA absent an OSHA inspection or if the employer voluntarily participates in an OSHA data initiative.
If it goes into effect, OSHA’s expanded electronic data reporting proposal will impact many employers in various ways:
- Employers in certain designated industries such as utilities, construction, manufacturing and waste collection with 20 or more employees that are already required to keep injury and illness records will now have to submit to OSHA their OSHA Form 300A data annually without any sort of request by OSHA.
- Employers with 250 or more employees that are already required to keep injury and illness records under OSHA’s regulations will now have to submit to OSHA their OSHA Form 300 and 300A data quarterly.
- Any other employer to whom OSHA sends a notification must also submit electronic injury and illness data upon request and at intervals specified in the notification.
Additional Data Reporting Could Result in More Inspections
OSHA has clearly stated that it is going to use such data to identify workplaces with the “greatest risk” and target its compliance efforts at these workplaces. The electronically submitted injury and illness data will provide OSHA with an entirely new basis for employer inspections and greatly simplify OSHA’s identification of workplaces with higher incidence of injuries. OSHA has never before had this broad scope of comprehensive data at its fingertips.
Although the electronic submission of this data will probably not be overly burdensome, the impact of the data, and of making it public, could be profound. Every employer required to submit data to OSHA would need to ensure that the information is absolutely accurate. Employers would also need to plan for the fact that the press, plaintiff attorneys, unions and business competitors would likely make more use of the data than employees.
It is likely that this proposed regulation will become law in some variation. Employers should use this time to prepare for its implementation. Employers who are currently required to maintain OSHA 300 and 300A forms should review their procedures regarding the creation and maintenance of their Forms and ensure that all necessary data is being properly recorded. Employers should also determine if it will face any difficulties in submitting their data electronically. Employers may want to consider determining how their accident/injury rates compare to other employers in their NAICS code. This information should be available from your insurance broker or provider. Since the data submitted under the new regulation will be made available to the public, employers should do what they can to bring their accident/injury rates in line with those of similarly situated employers. It is very likely that entities with whom you wish to do business and others, such as unions, will use this data.
Although the actual submission of this data electronically will probably not be overly burdensome to most employers, the use of this information will be far more problematic. For the first time the press, plaintiffs lawyers, potential clients and competitors will be able to very quickly view an employer’s injury history. Most, if not all, of these individuals will attempt to make use of this information in ways that is not in employers’ best interests. It is important to act now to prepare to submit this information and to take steps to reduce your reportable incidents as much as possible.
(78 Fed. Reg. 67,254 Nov. 8, 2013) (Docket No. OSHA-2013-0023)
 OSHA Form 300 requires an employer to provide the following information: the employee’s name, job title, date and location of injuries or onset of illness, and a description of the injury or illness. OSHA Form 300A requires an employer to provide information in summary form regarding the number of work-related injury or illnesses, the number of days employees were away, restricted or transferred from their jobs due to injuries or illnesses, numerical information regarding specific injury and illness types, and the employer’s annual average number of employees and total hours worked by all employees during the previous year.