Recent OSHA activity indicates possible changes in the scope and enforcement of the newly-created Improve Tracking of Workplace Injury and Illnesses Rule (Electronic Reporting Rule). OSHA intends to collect less data than the rule requires in order to address concerns about publicizing personally identifiable information (PII). This move suggests other changes to the rule may follow.
As posted on this blog earlier, under current regulations, establishments with more than 250 employees must electronically report data contained in OSHA Forms 300A, 300, and 301, starting with information from 2017. Because Form 300A includes only aggregate yearly data on safety-related incidents, publicizing data from that form poses little to no risk of disclosing PII. Forms 300 and 301, however, record detailed information about specific safety-related incidents, including the affected worker’s name, address, job title, and date of birth. Although OSHA did not initially collect some PII from these forms and never intended to publish any PII it did collect, OSHA has now determined that it cannot guarantee such data will not be released.
Consequently, as explained in a recent OSHA agenda report, the agency has concluded that if privacy concerns prevent it from “publish[ing] collected worker injury and illness data because it cannot guarantee the non-release of [PII],” then it may, under the rule, discontinue collecting such data. Because of these concerns, OSHA proposes “to remove the requirement to electronically submit to OSHA information” from Forms 300 and 301. In fact, currently OSHA “is not accepting Form 300 and 301 information at this time,” despite what the Electronic Reporting Rule requires.
OSHA’s attention to PII may reflect that it recognizes other existing concerns about the Electronic Reporting Rule, some of which have arisen in litigation challenging the rule. In two separate but similar lawsuits, certain construction industry organizations claimed OSHA’s online posting of workplace injury and illness data discloses not only PII but also confidential business information that could harm competitive and reputational interests. In particular, disclosed information could give an adverse impression of a company’s safety program.
Those claims find support in OSHA’s commentary on the rule. In advancing the Electronic Reporting Rule, OSHA explained that collecting, disclosing, and providing public access to workplace injury and illness data “will . . . ‘nudge’ some employers to abate hazards” and would help “prevent workplace injuries and illnesses, without OSHA having to conduct on-site inspections.” By announcing such goals, OSHA implicitly acknowledges that publicizing this data could create negative impressions about certain companies’ safety record and OSHA compliance. Such impressions, however, may lack foundation, particularly when injuries and illnesses may not have resulted from any OSHA violation, but rather from unpreventable employee misconduct.
Although OSHA has not expressly stated that it will address such concerns, as it has for PII, it has said that its intention to revise the Electronic Reporting Rule moots the pending litigations regarding that rule. As a result, OSHA asked the Court to stay both matters, and construction industry groups have not objected.
Both OSHA’s shift in enforcing the Electronic Reporting Rule and its intent to make revisions may signal a possible change to OSHA’s priorities and approach to workplace safety. Given that the Electronic Reporting Rule was created under the Obama administration and modifications to its language and enforcement are occurring under the new executive leadership, the change may reflect a larger deregulatory inclination that the Trump administration promised. With the current climate, further changes in the Electronic Reporting Rule seem likely. These changes will require construction industry businesses to stay up to date with OSHA reporting requirements so they can determine the most cost-effective compliance strategies. Doing so in this evolving regulatory environment requires consultation with legal counsel and safety coordinators.
Michael Metz-Topodas is an Associate in the Construction Group and represents commercial and construction clients in all stages of litigation from assessing claims and developing case strategy to drafting pleadings, substantive and procedural motions, discovery responses, protective orders, and settlement agreements.