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May 11, 2016
OSHA to publish final electronic recordkeeping rule tomorrow
By Ana Ellington, Legal Editor

The Occupational Safety and Health Administration’s (OSHA) Improve Tracking of Workplace Injuries and Illnesses rule will be published in the Federal Register Thursday, May 12, 2016.

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In a 3-year phase-in implementation, the rule requires establishments with 250 or more employees to electronically submit OSHA Forms 300, 301, and 300A; and establishments with 20–249 employees in industries listed in Appendix A must electronically submit Form 300A by March 2 each year.

The rule at 29 CFR 1904.41(a)(3) also replaces OSHA’s existing regulation at 29 CFR 1904.41, Annual OSHA Injury and Illness Survey of 10 or More Employees, and now requires establishments to electronically submit OSHA requests for injury and illness data—which allows OSHA to obtain a “much larger database of timely, establishment-specific information about injuries and illnesses in the workplace.” Commenters to the proposed rule claim the language in 29 CFR 1904.41(a)(3) gives OSHA “unfettered discretion,” giving the Agency too much power for “ad hoc data collection.”

In response to commenters’ concerns about individual privacy concerns, OSHA said:
“This final rule only requires disclosure of purely factual and uncontroversial workplace injury and illness records that are already kept by employers. … disclosure of workplace injury and illness records is reasonably related to the government’s interest in assuring ‘so far as possible every working man and woman in the Nation safe and healthful working conditions.’” 29 U.S.C. 651(b)

OSHA also said that since the final rule only requires establishments with 250 or more employees to submit information from all three OSHA recordkeeping forms, the Agency believes it is less likely that employees in such large establishments will be identified on the basis of the posted recordkeeping data.

See OSHA’s factsheet on the final rule for more information.

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