Seyfarth Synopsis: OSHA has just issued its final rule that removes 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 will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). 84 Fed. Reg. 380 (January 25, 2019).

In May 2016, under the Obama Administration, the Department of Labor issued a final rule that would have required companies with 250 or more employees to electronically submit their OSHA 300, 301 and 300A forms annually. The information, which would contain summaries of employee names and injuries, would be maintained on government computer systems, but could be requested by third parties such as labor unions, special interest groups, or even competing companies who have an interest in such information.

In light of the legitimate worker privacy concerns, OSHA, under the Trump Administration, in July 2018, issued a proposed rule that would narrow the electronic disclosure rule. However, some special interest groups, comprised of public-health advocacy groups, viewed the information contained in employers’ OSHA forms as a valuable source of workplace health data. As such, these groups previously sued to reinstate the final rule that required employers to submit OSHA 300 and 301 forms electronically. A federal court recently denied that request.

The court in Pub. Citizen Health Research Grp. v Acosta, No. 1:18-cv-01729, 2018 BL 459531 (D.D.C. Dec. 12, 2018), reasoned that the interest groups would have to show “irreparable harm” by not being able to access the OSHA forms to succeed in their lawsuit. They were unable to show “irreparable harm” because OSHA has issued a notice of proposed rulemaking that narrows the electronic disclosure rule, but could change their mind and ultimately require employers to submit the forms electronically. As such, the court reasoned, such groups could potentially obtain such information in the future. Further, the court stated that OSHA’s delay in accepting the OSHA forms does not prevent the special interest groups from conducting the same type of workplace safety research independently. Because they are not “irreparably” harmed by OSHA’s actions, the Court denied the relief they sought.

Revised Electronic Reporting Requirement

OSHA’s January 25, 2019 final rule limits the electronic submission requirement to the 300A summary for establishments who are required to keep OSHA records and with 250 or more employees. Establishments with 20 or more (but fewer than 250) employees in certain specified industries (in Appendix A to the regulation) must also submit form 300As.

OSHA believes that this final rule will better protect personally identifiable information or data that may be re-identified with a particular worker by removing the requirement for employers with 250 of more employees to submit their information from Forms 300 and 301 electronically. 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.

We have blogged frequently on OSHA’s electronic reporting rule. See California Enacts New Record-Keeping Mandates in Response to Changing Federal Program, Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements, All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

The deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.