Hunton Employment & Labor Perspectives

Last August, we reported on OSHA’s proposed rulemaking regarding electronic submissions of workplace injuries and illnesses in our blog entitled, “OSHA Issues Proposed Rule Regarding Electronic Submission Requirements.” OSHA has since issued a final rule which became effective on February 25, 2019.

The new rule rescinds the requirement that employers with 250 or more employees, or employers in certain high-hazard industries, electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  Affected employers must still maintain Forms 300 and 301 on-site and make them available for OSHA inspection, if requested.  Employers covered by the rule now only are obligated to submit Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

The new rule adds an obligation that employers who submit Form 300A must include their Employer Identification Number (EIN) with their submission. The EIN will be required for March 2, 2020 submissions.

This deregulatory measure may be welcome news for employers and employees as it eliminates an administrative burden for employers and alleviates privacy concerns for employees.  As we previously reported, the requirement was controversial when it was initiated, because some foresaw increased scrutiny on employers and anticipated privacy breaches on employee information.

OSHA’s rescission of the 2016 rule is in line with current trends emphasizing protection of individual privacy and limits on mass data collection.  However, the new rule is already facing challenges from the states of New Jersey, Illinois, Maryland, Massachusetts, Minnesota and New York.  These six states filed a lawsuit on March 6 in the U.S. District Court for the District of Columbia seeking an injunction against the new rule.  They argue that the data collected from forms 300 and 301 is necessary for policy makers, program developers, and researchers in the states to understand the causes of workplace injuries and illnesses.  OSHA, on the other hand, maintains that summary data collected from Form 300A has proven useful for targeting areas of concern, and data from Forms 300 and 301 confer only “incremental benefits.”  84 FR 380, 381.  And, the agency points out that employers may still use their own data to develop injury prevention programs or share their data with researchers voluntarily.  As the public debate as to whether more or less data collection is beneficial plays out in this arena, we will continue to follow along and provide updates.