Federal Court Decision Requires OSHA to Make Employer 300A Data Public
The U.S. District Court for the District of Columbia recently resolved a 2-year legal battle between OSHA and Public Citizen, finding that OSHA must now make Form 300A occupational injury and illness summary data collected from approximately 237,000 employers available to the public.
Let’s take a closer look at the background of the Public Citizen suit, the details behind the Court’s decision, and the implications for employers covered by OSHA’s Injury and Illness Recordkeeping Standard who must annually submit electronic 300A summary data to OSHA.
In May 2016, OSHA issued a final rule called “Improve Tracking of Workplace Injuries and Illnesses” (aka “the electronic reporting rule”). This final rule supplemented OSHA’s Recordkeeping Standard by requiring some establishments who are already subject to recordkeeping requirements to electronically transmit their workplace injury and illness data directly to OSHA.
Under the final rule, establishments with 250 or more employees, as well as establishments in certain high-risk industries with between 20 and 249 employees, must electronically submit their form 300A data from their Form 300A summary data to OSHA via the Agency’s online Injury Tracking Application (ITA).
The deadline for submission of calendar year 2016 data was December 31, 2017, after being postponed several times from its original due date of July 1, 2017. 2017 data was due July 1, 2018, and CY 2018 data was due March 2, 2019. Going forward, the submission deadline for the previous calendar year’s injury and illness summary data is March 2.
The 2016 final rule had stated that “OSHA intends to post the data from these submissions on a publicly accessible Web site,” while also noting that “publication of specific data fields will be in-part restricted by applicable federal law, including the Freedom of Information Act (FOIA), as well as specific provisions within part 1904.” The rule also noted that OSHA did not intend to post any information on the Web site that could be used to identify individual employees.
The original text of the 2016 final rule also created requirements for some establishments to submit electronic information from Forms 300 and 301, where more specific details about employee injuries and illnesses could potentially be found. In response to concerns over potential privacy issues, OSHA rescinded the requirement to submit Form 300 and 301 information with its revision of the final rule published in January 2019. Following this revision, only Form 300A summary level data was required to be submitted.
Still, as months passed after the initial submission deadline, OSHA did not indicate that actions were underway to make employers’ 300A information publicly available. In 2017, Public Citizen submitted Freedom of Information Act (FOIA) requests to OSHA for the 300A data the agency had initially received from employers. OSHA did not release this information in full, citing Exemption 4 under FOIA for “confidential information.”
Public Citizen countered that this information did not pass the test of confidentiality, because the Recordkeeping Standard requires employers to post the same data in physical form in an accessible location in the workplace from February 1 through April 30th of each year for the previous year’s injury and illness summary data. Additionally, OSHA had in the past often publicly shared 300A data they collected during enforcement activity, and had provided 300A forms in response to FOIA requests.
What Changes are Happening?
In June 2020, a magistrate judge recommended that the Court enter judgment for Public Citizen on the grounds that it does not find the records to be covered under the confidentiality exemption under FOIA Exemption 4. The Magistrate also stated that OSHA had not demonstrated that Form 300A data is intended to be kept private or under close control by the employer.
The decision included a deadline of July 21 for OSHA to object to the judge’s recommendation. OSHA elected not to object, and agreed to produce the records in full.
“Workplace injury and illness data should not be hidden from public view,” said Michael Kirkpatrick, an attorney with Public Citizen. “Release of Form 300A data, as required under FOIA, will have a significant impact on efforts to protect worker health and safety. The records should provide important information to help researchers identify the causes of work-related injuries and illnesses and develop solutions.”
The U.S. District Court for the District of Columbia entered an order requiring that OSHA produce the requested records by August 18, 2020. As of this writing, there is no indication that OSHA will try to postpone this date.
How Does This Affect Me?
If you have an establishment covered by OSHA’s Electronic Reporting Rule, this decision means that your reported 300A data for calendar years 2016 through 2019 (the calendar years for which OSHA has received data so far) will likely become public information. It also means that you can expect 300A information for CY 2020 and beyond to become public information, as well.
This decision places even greater urgency on employers to ensure that their injury and illness data is accurate. For instance, employers often make mistakes on their Form 300, such as double-counting an injury as both “days away from work” and “job transfer or restriction”. Errors like these ultimately create uncertainty about overall numbers of incidents on the 300A. With employers now required to not only provide that information to OSHA, but also to do so with the assumption that the information will be publicly available, accuracy is more important than ever.
Another unique recordkeeping challenge employers are facing right now is the ongoing confusion over whether workplace cases of COVID-19 are recordable illnesses. We’ve discussed this issue in a past blog post, and OSHA issued temporary enforcement guidance to its regional administrators in April 2020 on how to address compliance with injury and illness recordkeeping requirements during the COVID-19 pandemic. It would be a good idea for all employers, including those covered under OSHA’s electronic reporting rule, to be familiar with the guidance in this enforcement memo. Errors in classifying COVID-19 cases could dramatically affect the accuracy of the number of occupational illnesses indicated on the employer’s Form 300A.
Now is a good time to make sure you’re up to speed on all of the details and nuances of OSHA’s Recordkeeping Standard. For additional information, watch our on-demand webinar:
OSHA’s Recordkeeping Standard: Your Guide to Compliance
Let VelocityEHS Help!
The VelocityEHS Incident Management solution and VelocityEHS Mobile App give you and your workforce the ability to record workplace incidents from anywhere at any time, improving the timeliness and accuracy of your injury and illness records. You’ll have the additional advantage of having all of your injury and illness data and records in one centralized, accessible location, which is a huge benefit if you’re managing injury and illness data for multiple establishments subject to the Recordkeeping Standard.
VelocityEHS also makes meeting OSHA electronic reporting requirements fast and simple. Our Incident Management solution allows you to automatically generate and export fully-formatted 300A injury and illness summary data in a standard .CSV file format for direct electronic submission to OSHA’s online Injury Tracking Application (ITA).
To learn more about how VelocityEHS can make OSHA recordkeeping and electronic reporting compliance simpler for you, please feel free to contact us today!