News & Updates

OSHA Electronic Record Keeping Update

July 31, 2018 – An Occupational Safety and Health Administration (OSHA) update from NIA legal counsel:

Today, OSHA filed a Notice of Proposed Rulemaking (NPRM) to eliminate the requirement for businesses with 250 or more employees to electronically file their OSHA 300 and 301 form annually. The proposed rule would eliminate this requirement. The rule for all employers with 20 or more employees to electronically file their OSHA 300A forms each year will remain in place.

It appears that the driving force behind this action is a concern for the privacy of employees who have been injured on the job and therefore listed on the OSHA 300. There should also be an OSHA 301 on each of the accidents that led to the 300 listing. The privacy concern relates mostly to the OSHA 301 forms, which require personal information on the injured employee. This information includes the name of the employee; his/her home address; date of birth; whether the employee was treated in an emergency room and released or hospitalized overnight; and the nature of the employee’s injury. Not only would this information be posted on the OSHA website, but it could also be obtained, after it was in the possession of OSHA under a Freedom of Information Act request. OSHA has taken the position that such information would be exempt from such a request, but commenters are concerned that an FOIA request, if the FOIA denial was appealed into court, the court might order its production to the requesting party.

The three forms, the 300, 300A, and the 301 will remain, and the 300A will still be electronically filed, but the 300 and 301 forms will be exempted from electronic filing.

I expect that the current delay in the July 1 deadline for filing the 300 and 301 forms for large employers will continue in place until a final rule is published.

None of these actions have any impact on the anti-retaliation rules that became effective on December 1, 2016.

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