Proposed OSHA Workplace Data Program Could Lead to More Targeted Employer Inspections

OSHA’s New Proposal

The Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor has issued a proposed regulation, Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67,254 (Nov. 8, 2013) (Docket No. OSHA-2013-0023), that would require, for the first time ever, the submission of workplace injury and illness data in electronic form directly to OSHA and which will then become public.  OSHA is accepting public comments on the proposed regulation up until February 6, 2014.

Under the current regulations, certain employers – approximately 750,000 in total – are required to record and maintain workplace injury and illness data on OSHA Forms 300 and 300A, but those employers are not required to submit their data to OSHA absent an OSHA inspection or voluntary participation by the employer in an OSHA data initiative.  OSHA Form 300 requires an employer to provide the following information: the employee’s name, job title, date and location of injuries or onset of illness, and a description of the injury or illness.  OSHA Form 300A requires an employer to provide information in summary form regarding the number of work-related injury or illnesses, the number of days employees were away, restricted or transferred from their jobs due to injuries or illnesses, numerical information regarding specific injury and illness types, and the employer’s annual average number of employees and total hours worked by all employees during the previous year.

Additionally, all employers must report directly to OSHA within eight hours any employee deaths from work-related incidents and all “multiple hospitalization events” (defined as in-patient hospitalizations of three or more employees as a result of work-related incidents).

OSHA’s expanded electronic data reporting proposal will affect the following groups of employers accordingly:

• Employers in certain designated industries like utilities, construction, manufacturing and waste collection with 20 or more employees in the previous year and that are already required to keep injury and illness records under OSHA’s regulations will now have to submit to OSHA their OSHA Form 300A data annually.

• Employers with 250 or more employees in the previous year and that are already required to keep injury and illness records under OSHA’s regulations will now have to submit to OSHA their OSHA Form 300 data quarterly and OSHA Form 300A annually.

• Any other employer to whom OSHA sends a notification must also submit electronic injury and illness data to OSHA upon request and at intervals specified in the notification.

Heightened Risk of OSHA Inspections for Employers Due to Expanded Electronic Reporting

OSHA has been clear that it intends to use the data “to identify the workplaces where workers are at greatest risk, in general and/or from specific hazards, and to target its compliance assistance and enforcement efforts accordingly.”  In general, employers are protected by the Fourth Amendment against searches and seizures of their private property, and this includes OSHA inspections, such that OSHA is constrained in its ability to target particular employers for inspection and enforcement.  OSHA usually must rely on factors such as a computer randomized inspection process, an employee complaint or a report of an injury (often in the media) before initiating an inspection.

With electronically submitted injury and illness forms, however, OSHA will have at its fingertips an entirely new basis for employer inspections – employers with injury and illness rates that indicate a level of risk greater than expected may be targeted by OSHA for inspection. 

OSHA argues in the proposal that the regulation will not infringe on employers’ Fourth Amendment rights for two reasons.  First, OSHA states that employers should have little or no expectation of privacy in records that are required, by the government, to be kept and made available.  Second, OSHA maintains that even if employers do have an expectation of privacy in their injury and illness data, this intrusion on that interest is not unreasonable because the proposal serves a substantial government interest in the health and safety of workers.  But – because OSHA has never before had updated and immediate access to employer injury and illness data – it is unclear what statistical evidence from the reported data will be sufficient to justify an OSHA inspection.

What Employers Should Do Now

The proposal has been in the works for more than three years now, and it is likely the proposal will become law in some shape or form in the near future.  Accordingly, employers should use this time to take steps to get ahead of their competitors by appraising their current compliance efforts.

Employers with current workplace accident and injury reporting obligations should review their procedures regarding the creation and maintenance of their OSHA Forms 300 and 300A and ensure that all necessary data is being properly recorded and maintained.  Employers should also assess whether they will face any difficulties in maintaining and submitting their data electronically.

Finally, given that the electronic injury and illness data will be provided to the public and to OSHA for inspection prioritization, employers should reach out to their insurance providers to ascertain how their injury and illness rates compare with the rates of the other employers in their North American Industry Classification Systems (NAICS) code.  And to the extent employers are advised that their injury and illness rates are out of the norm, employers should endeavor now to assess and address whatever underlying issues are causing their heightened accident and/or injury rates with a goal toward correcting all such issues prior to the implementation of the proposed regulations.