Trump's OSHA Backtracks on Electronic Recordkeeping Rule over Bogus Privacy Concerns

by Katie Tracy

August 14, 2018

The Trump administration has aggressively sought to undermine public safeguards since taking office, all under the guise of making America great (again?). Nowhere has this been more evident than the Environmental Protection Agency (EPA), where Trump appointees have sought to attack most every standard adopted during the Obama era, as well as long-standing analytical procedures (see here and here) designed to ensure any new standards are evidence-based and scientifically sound. These attacks do not stop at EPA, however. Trump has also undermined worker protections at every turn. 

At the end of July, Trump's Occupational Safety and Health Administration (OSHA) proposed to roll back an Obama-era rule finalized in May 2016 to improve tracking of worker injuries and illnesses by requiring employers to electronically submit certain records to the agency. The final rule did not ask employers to document additional information than is already required under existing recordkeeping rules. Rather, it sought to require establishments to submit injury and illness information electronically to OSHA – a relatively easy ask that should have been instituted a decade ago. 

Specifically, the rule sought to require establishments with 250 or more employees to submit a log of injuries and illnesses (called OSHA Form 300), a summary of the log (called OSHA Form 300A), and detailed reports that describe exactly what happened when an incident occurred (called OSHA Form 301). For smaller businesses with 20 to 249 employees in certain "high-hazard" industries, the rule simply required them to submit Form 300A electronically. The rule also included worker protections against retaliation for reporting injuries and illnesses, a provision of the rule that fortunately remains in effect. 

OSHA already requires employers to collect this information, but at present, the agency only has access to it when an inspector shows up at the worksite to conduct an inspection. And OSHA inspectors are so limited that it would take over 150 years for each worksite under the agency's jurisdiction to be inspected just once. The May 2016 rule would have improved worker safety by allowing OSHA to utilize the data submitted electronically by employers to prioritize the agency's enforcement and compliance assistance activities by targeting their limited resources to the most dangerous workplaces. In other words, by requiring electronic submission of this data, OSHA would have easier access to information about injuries and illnesses, meaning it could put the records employers already maintain to good use, rather than leaving them to collect dust. 

But instead of moving forward with these electronic submission requirements, OSHA is now proposing to collect only Form 300A – the summary form – from all employers. OSHA cites worker privacy concerns as the basis for rolling back the requirements, claiming that collecting any more than Form 300A would subject workers' private information to potential disclosure under the Freedom of Information Act (FOIA) – the federal law that allows any member of the public to request and receive copies of certain government documents, with exceptions. 

The problem with this argument is that such information is not and has never been subject to disclosure under FOIA. In other words, OSHA is claiming that a wholly made up and unsubstantiated concern about information potentially being released accidentally under FOIA overrides all of the benefits of collecting the injury and illness information. Among some of the improvements to worker protections OSHA listed in its final rule in May 2016 include:  

  • More easily identifying small- and medium-sized employers who report high overall injury and illness rates and referring them to OSHA's free on-site consultation program;
     
  • Sending hazard-specific educational materials to employers who report high rates of injuries or illnesses related to those hazards and sending letters notifying employers when their reported injury and illness rates exceed industry-wide rates;
     
  • More easily identifying emerging hazards and reaching out to employers whose workplaces might include those hazards; and
     
  • Evaluating the effectiveness of the agency's enforcement and compliance assistance activities. 

It's obvious the concerns over workers' privacy is a false pretense for not collecting data that employers do not want to share with OSHA because they are happy with the agency as it is – lacking resources to enforce the law and lacking information to prioritize its limited resources in an effective manner. The good news is OSHA is still collecting comments on its proposal to undermine the rule until September 28, so there's still time to share your opinion with the agency. 

This latest attack on worker protections is another attempt by the Trump administration to prevent protector agencies like OSHA from fulfilling their missions. Like the attacks on EPA, the real impetus is to appease irresponsible businesses that only know how to make money by skirting the law. The effect, unfortunately, is to push aside good companies that wish to compete within the bounds of the law, the American people, and our environment.

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Also from Katie Tracy

Katie Tracy, J.D., joined CPR as a workers’ rights policy analyst in May 2015. Her previous experience includes working for more than two years as a regulatory policy analyst at the Center for Effective Government, where she advocated for strong regulations to protect health, safety, and the environment.

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