OSHA Proposes Rule to Better Protect Personally Identifiable Information
August 14, 2018
On July 30, the U.S. Occupational Safety and Health Administration (OSHA) published in the Federal Register, a Notice of Proposed Rulemaking to better protect personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the “Improve Tracking of Workplace Injuries and Illnesses” rule. 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 proposed rule eliminates the requirement to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are currently required to maintain injury and illness records. These establishments would be required to electronically submit information only from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA is proposing to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission.
In the May 2016 “Improve Tracking of Workplace Injuries and Illnesses” final rule (81 FR 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually. Establishments in certain industries with 20-249 employees are required only to electronically submit information from only the OSHA Form 300A — the summary form. This proposed rule would amend OSHA’s recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301 — the individual forms.
OSHA is seeking comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure. OSHA will be accepting comments on the proposed rulemaking through Sept. 28, 2018.
OSHA’s regulation at 29 CFR part 1904 requires employers to collect a variety of information on occupational injuries and illnesses. Much of this information may be sensitive for workers, including descriptions of their injuries and the body parts affected. Under OSHA’s regulation, employers with more than 10 employees in most industries must keep those records at their establishments. Employers covered by these rules must record each recordable employee injury and illness on an OSHA Form 300, the “Log of Work-Related Injuries and Illnesses,” or equivalent. Covered employers must also prepare a supplementary OSHA Form 301, the “Injury and Illness Incident Report” or equivalent, to provide additional details about each case recorded on the OSHA Form 300. OSHA requires employers to provide these records to others under certain circumstances but imposes limits on the disclosure of personally identifying information. Finally, at the end of each year, these employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, the “Summary of Work-Related Injuries and Illnesses,” and post the form in a visible location in the workplace.
Form 301 requires the collection of much sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent. While some of the information is likelier to be regarded as particularly sensitive.
Form 300 requires employers to log much of this individual information — notably, descriptions of injuries and the body parts affected — for each individual worker and incident. Form 300A, by contrast, merely summarizes incident data without any traceable connection to individual workers.
Under the current recordkeeping rule, the deadline for electronic submission of Calendar Year (CY) 2017 information from OSHA Forms 300 and 301 was July 1, 2018. In subsequent years, the deadline is
March 2. OSHA is not currently accepting the Form 300 or 301 data and will not enforce the deadlines for these two forms without further notice while this rulemaking is underway. The electronic portal collecting Form 300A data is accepting CY 2017 data, although submissions after July 1, 2018, will be marked late.
ACA will be submitting comments on OSHA’s proposed rule by the comment deadline.
Contact ACA’s Riaz Zaman for more information.