In May 2016, the Occupational Safety and Health Administration under President Obama amended § 1904.41 to require certain employers to electronically submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. Beginning in 2017, employers were required to submit the 300A Annual Summaries for establishments having 250 or more employees and for smaller establishments in certain high-hazard industries identified by OSHA. Although the initial due date for these submissions was July 1, 2017, this filing date was delayed a few times (our previous coverage is here and here), until December 15, 2017, and even then OSHA announced that it would accept these electronic filings by December 31, 2017. Although OSHA expected about 350,000 worksites to report, only about 153,653 reports were submitted. As of this writing, Constangy is not aware of any consequences to those employers who failed to comply with the filing requirement.
On Monday, July 30, 2018, OSHA published in the Federal Register a Notice of Proposed Rulemaking. Under the terms of the new proposed regulation, § 1904.41 would be amended to no longer require covered employers to submit any OSHA 300 Logs or 301 Incident Reports, the forms containing individual employee information. The covered establishments would still be required to electronically file the OSHA 300A Annual Summaries.
The stated primary rationale for this proposed change is to “protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA).” Even before this regulation went into effect on January 1, 2017, there were concerns expressed about the Agency’s initial decision to post the injury and illness information on its website, making the information available to the public, or about disclosure through FOIA request. OSHA’s rationale at the time was that by making this information widely available, employers would be “nudged” into improving safety. The Trump Administration made it clear early in 2017 that it disagreed with this approach and announced in May 2017 that it would be issuing a proposal to reconsider and revise the electronic filing requirements. With its Notice of Proposed Rulemaking, OSHA has now acted on that earlier announcement.
Anyone interested in submitting comments to OSHA about this proposed amendment has until September 28 to do so.
Assuming that OSHA ultimately issues final regulations, state OSHAs would have six months to promulgate their own versions that are substantially identical to this federal OSHA amendment.
If you have any questions about the Notice of Proposed Rulemaking, feel free to email any member of our Constangy’s Workplace Safety Practice Group.