OSHA Issues Final Rule to Its Improve Tracking of Workplace Injuries and Illnesses Regulation

This week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule to its Improve Tracking of Workplace Injuries and Illnesses recordkeeping regulation.

In its final rule, OSHA requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. These employers include establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, as well as establishments with 20–249 employees that are classified in a number of specific industries—including construction; businesses that provide services to buildings and dwellings; and waste collection, treatment, and storage companies—that must electronically submit their Form 300A Summary data to OSHA.

The agency states that it is collecting this information to improve its ability to identify establishments that experience high rates of occupational injuries and illnesses. OSHA intends to use the data to interact with these establishments, through both outreach and enforcement initiatives, with the goal of reducing injuries and illnesses. On its website, OSHA claims that this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting, and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

After the publication of the final rule, Associated Builders and Contractors (ABC), a national construction industry trade association with more than 22,000 members, voiced its opposition via a press release.

“Unfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Instead, the final rule will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized, and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.”

“Smaller companies will also be negatively impacted by expanding the mandate to establishments with 100 or more employees,” Brubeck continued. “The recorded information can easily be backtracked to identify specific injuries and illnesses, and thereby the medical information of individuals in the workplace, violating their privacy.”

The final rule becomes effective on January 1, 2024.