OSHA held an informal public meeting Jan. 9 and 10 in Washington, D.C., to receive public feedback on a proposed rule that would require employers to electronically submit to the agency detailed injury and illness data that would be made publicly available through an online database. Employer groups, including the ABC-led Coalition for Workplace Safety (CWS), took the opportunity to express serious concerns over OSHA’s proposal. 

Under the proposal, OSHA would require establishments with 250 or more employees to submit injury and illness records (Forms 300, 300A and 301) to OSHA on a quarterly basis, and those with 20 or more employees in construction and other high-hazard industries to submit annually.

Although employers in the construction industry with 10 or more employees already are required to keep these records and send paper or electronic copies to OSHA if requested, this proposal would mandate electronic submission and would require that information to be posted in a searchable electronic database that would be accessible to the general public. 

More than 20 organizations and members of the public testified at the public meeting, many of which were opposed to OSHA’s proposal, including CWS, which called on OSHA to withdraw the proposed rulemaking.

CWS argued the proposed rule “will force employers to reveal sensitive and, in many cases proprietary, information that will then become available for anyone to access and use in whatever way they wish. This will lead to employers’ safety records being mischaracterized and subjecting them to illegitimate attacks.” 

CWS also argued that OSHA’s proposal could diminish workplace safety by effectively eliminating the long-standing “no fault” doctrine for injury and illness reporting. CWS cautioned that such a move would emphasize minimum compliance and lead to an unwanted chilling effect on recordkeeping. The coalition called on OSHA to withdraw the proposed rulemaking. 

Other concerns raised by stakeholders included 

• OSHA has not adequately considered cost and compliance impacts on employers (especially small businesses).
• The agency might not have the statutory authority to create the rule. 
• OSHA has not provided enough details on exactly how data would be collected from employers and how private and proprietary information would be protected from misuse. 
• Recent electronic data breaches and the technological problems associated with the government-run health care website are reasons to be cautious regarding the protection of private employee information. 
• Although OSHA has explained that it would be responsible for scrubbing employee identification information from injury and illness logs, they have not explained how this important step would be handled. 

OSHA also was challenged over enforcement concerns related to the proposal. Although OSHA Assistant Secretary David Michaels stated in a November 2013 announcement that the proposal was “not an enforcement initiative,” OSHA also has said it will use the data to steer enforcement priorities. When asked whether they would begin using the data collected under the proposed rulemaking to supplement current use of McGraw Hill “Dodge” reports for programmed inspections, OSHA officials would not give a definitive answer. 

The transcripts from day one and day two of the public meeting are now available on OSHA’s website.

OSHA Jan. 7 announced  that it extended the written comment period for the proposal by 30 days to March 8, in response to stakeholder requests. 

For more information, contact Lauren Williams at [email protected]. 

**Compliance Note: Employers covered by OSHA’s recordkeeping rule must prepare and post OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” by Feb. 1, 2014, and keep the form posted until April 30, 2014.  The form must be posted at each establishment covered, in a visible place where notices to employees are customarily posted.