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The U.S. Occupational Safety and Health Administration’s proposal to roll back parts of its electronic record-keeping rule to protect sensitive employee information drew mixed reactions from workplace safety experts.
Some experts say OSHA’s proposal to rescind the requirement to electronically file certain injury and illness reports under the Improve Tracking of Workplace Injuries and Illnesses regulation will limit the availability of such safety data, which proponents of the original rule say can help industries improve workplace safety.
Other experts say the proposal to limit data collection is a good step that protects employee information, but at least one employer representative says the proposal, which would still require employers to electronically submit annual summaries on workplace injuries and illnesses, doesn’t go far enough.
Public advocacy groups and the former assistant secretary of Labor for Occupational Safety and Health questioned the timing and legality of the move to eliminate provisions of the rule.
OSHA adopted the electronic record-keeping rule in 2016 and went through a public comment period, which it is now doing again with the new proposal, leaving some baffled about why OSHA is not enforcing its own regulations, said David Michaels, former assistant secretary of Labor for Occupational Safety and Health and professor at the Milken Institute School of Public Health at George Washington University in Washington, D.C.
“OSHA was supposed to have put this in effect this year and it’s unfortunate that they are just arbitrarily saying they are not going to enforce the law,” Mr. Michaels said. “This is the Department of Labor violating the law.”
The proposal would amend the 2017 record-keeping regulation “by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries,” according to a draft of the notice published on the Federal Register on Friday.
OSHA reports that it is amending the record-keeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act. The agency has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information, according to the notice.
“OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule,” the notice states.
Edwin Foulke, an Atlanta-based partner in the workplace health and safety practice group with Fisher & Phillips L.L.P., said the move would allow employers the freedom to refine their workplace safety programs without the extra paperwork.
“It relieves an unnecessary burden on the employers to provide all this information; that is all information OSHA didn’t need to perform its (own) mission,” he said, adding that keeping the 300A summaries will give regulators enough information to keep track of industrial incidents without the potential concern of releasing private information.
Yet the 300A summary asks employers to submit their confidential business information, which is troublesome, said Marc Freedman, vice president for workplace policy at the U.S. Chamber of Commerce in Washington, adding that the new proposal only “dealt with two-thirds of the problem.”
“OSHA cites concerns for protecting employee information; the 300A form has confidential information from the employers,” he said. “(OSHA is) concerned about (Freedom of Information Act) requests for employee information but not for employer information… As long as those forms are being requested there is a nontrivial concern that these forms could be leaked.”
Namely, the 300A form requests an employer’s information number — a number used for tax purposes — and could cause breaches for the employers, according to Mr. Freedman. “You are exposing employers,” he said.
Still, some organizations think the risk is minimal because OSHA, if poised to release the information, promised to redact the personal data for both employees and employers, according to Sean Sherman, a Washington-based attorney at Public Citizen Litigation Group and lead attorney in a lawsuit filed Wednesday against the U.S. Department of Labor, the Secretary of Labor, and OSHA, over the proposed changes and delay of implementing the original record-keeping rule.
In the complaint filed in U.S. District Court for the District of Columbia, the Washington-based Public Citizen Health Research Group, the Washington-based American Public Health Association, and the Atlanta-based Council of State and Territorial Epidemiologists, all public advocacy groups, are challenging OSHA’s suspension of parts of the rule. The groups say the data collected by OSHA serve to improve workplace safety practices, according to the complaint, which seeks to halt the changes.
“The whole purpose of the rule was to collect this data and make it public to improve workplace safety,” Mr. Sherman said, adding that the proposed changes are “a fig leaf for what they are really trying to do, which is to roll back employee protections.”
Mr. Michaels agrees that the latest move by OSHA is meant to protect employers, who don’t want lapses in workplace safety exposed. “Right now OSHA doesn’t know the types of injuries occurring at different establishments,” he said. “(Collecting the data) would provide OSHA with a tremendous amount of information to understand injury causation.”
The U.S. Occupational Safety and Health Administration’s decision to extend the deadline once again for employers to electronically submit injury and illness data surprised no one, but stakeholders are hoping this means the agency will either significantly revamp the rule or at least provide additional clarity for employers.