Under 29 CFR 1904.41, certain employers were only required to electronically submit injury and illness information from their OSHA Forms 300A (the summary) annually. However, in the NPRM, OSHA explained that because of improvements in available technology, it would no longer need to rely on manual review or analysis for Form 300 and 301 data and had preliminarily determined that the agency's resource-related concerns described in the 2019 final rule were no longer compelling (87 FR 1854142). Start Printed Page 47269. See representative, or authorized employee representative asks an employer for copies of an employer's current or stored OSHA 300 Log(s), the employer must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day (see 29 CFR 1904.35(b)(2)(ii)). https://www.osha.gov/sites/default/files/OSHA_Leading_Indicators.pdf). Previously BLS collected complete details only for cases involving days away from work. An official website of the Commonwealth of Massachusetts Here's how you know. For example, some interested parties, including the Council of State and Territorial Epidemiologists, National COSH, the Laborers' Health and Safety Fund of North America, Worksafe, the International Brotherhood of Teamsters, Centro de los Derechos del Migrante, and Public Citizen, commented that requiring regular electronic submission of injury and illness data would help OSHA to use its limited enforcement and compliance assistance resources more effectively (Docket IDs 0040, 0048, 0063, 0080, 0083, 0089, 0093). Establishments with 20249 employees in certain designated industries (listed in appendix A to subpart E) will continue to be required to electronically submit information from their Form 300A annual summary to OSHA once a year (final 1904.41(a)(1)(i)). NIOSH commented that employers might submit inflated employee counts to OSHA in order to reduce their injury and illness rates or alter their NAICS code to avoid the rule's requirements (Docket ID 0035, Attachment 2). Some commenters expressed the opinion that the wage rate estimates used in the PEA were too low. Start Printed Page 47300 Data must be submitted annually, for the previous calendar year, by the date specified in 1904.41(c), which is March 2. For appendix A, OSHA limited the scope of this rulemaking to the proposed update from the 2012 version of NAICS to the 2017 version of NAICS. However, BLS has modified its collection procedures to be able to automatically import certain Form 300A submissions from the OSHA ITA into the BLS SOII Internet Data Collection Facility (IDCF). The North American Meat Institute said that current use of other forms would require significant administrative burden to translate the required information into the online form (Docket ID 0070). Moreover, OSHA expects that establishments are familiar with this threshold from their experience with other Federal standards. The final rule's requirements in 1904.41(a)(1) are discussed below, along with the proposed provisions and related evidence in the rulemaking record. For businesses that are sole proprietorships or partnerships, the owners and partners would not be considered employees and would not be counted. The AFLCIO commented that access to more detailed data would provide researchers with an invaluable source of information on workplace safety and health hazards (Docket ID 0061). It also does not necessarily follow that an agency could not have made a different, non-arbitrary-and-capricious decision based on the record before the agency at the time it made its original decision. Once subjected to strict scrutiny, the publication provision of this Proposed Rule must fail because it is not narrowly tailored towards accomplishing a compelling government interest. Specifically, the National Retail Federation (NRF) commented that throughout the COVID19 pandemic and continuing beyond, various groups have targeted employers for implementing vaccine mandates in their workplaces. There were also comments asking OSHA to expand the data requested on OSHA's recordkeeping forms. Issue citations for all late reporters, 3. Furthermore, OSHA is not aware of any instances of damage from bad actors as a result of data collected through the ITA or the ODI and published since 2009, and commenters did not provide any examples. The overhead rate that OSHA uses in this cost analysis (17 percent) is based on the EPA's Wage Rates for Economic Analyses of the Toxics Release Inventory Program, June 10, 2002. On March 30, 2022, OSHA issued a notice of proposed rulemaking (NPRM or proposed rule) proposing to amend the recordkeeping regulations to require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year (87 FR 18528). (The point is further underscored by the Agency's request for information on what proprietary software is out there that is capable of removing information that reasonably identifies individuals directly from text data). (Docket ID 0087). . Using the updated data in Table 2, above, OSHA calculated a new average cost per establishment for batch file submitters of $10.22 per establishment. However, as ASSP acknowledges, leading indicators are not the only such tool. Similarly, OSHA began releasing establishment Forms 300 and 301 in response to FOIA requests (after appropriately redacting certain personal identifiers under Exemption 7(C)). https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees), at Question 21). In these states, it is illegal for employers to ask about criminal history on a job application. In the PEA, OSHA preliminarily concluded that the proposed rule would be economically feasible and received no comment specifically on this conclusion. In OSHA's 2001 final rule overhauling its recordkeeping system, it explained that while agency policy is that employees and their representatives with access to records should treat the information contained therein as confidential except as necessary to further the purposes of the Act, the Secretary lacks statutory authority to enforce such a policy against employees and representatives (see 66 FR 605657 (citing, . Even though the injuries and illnesses occurred during the previous calendar year, the information is helpful to OSHA in determining whether a hazard is an ongoing problem at a specific establishment. In response, OSHA received multiple comments about the desirability of data-sharing between BLS and OSHA, but there were no comments supporting the collection of employee names. v. Furthermore, there is a requirement in 1904.32 for employers to verify the entries on the Form 300 Log to ensure that they are complete and accurate. 729 F. Supp. e.g., When companies publish incident reports internal to all employees, all personal information is removed, and no medical information is provided. This commenter also stated that companies track different types of information and that some companies already benchmark with others (Docket ID 0086). And, even if it did, an employer could simply choose to update their NAICS code in the ITA. OSHA did not receive any comments specifically related to the text of proposed 1904.41(b)(1), and the agency has addressed comments related to the substantive submission requirements in 1904.41(a)(1) and (2), above. Our other locations all have less than 20 employees (Docket ID 0008). law . The OFR/GPO partnership is committed to presenting accurate and reliable As a result, the Privacy Act does not prevent OSHA from posting recordkeeping data on a publicly accessible website. 3507(d). Underscoring this ambition is the agency's presumption that employers are not invested in employees' safety; that public scrutiny is the only enticement to improve the workplace rather than an employers' natural concern for employees' safety. e.g., Docket ID 0017 (related to the recordability of COVID19 cases)) are out of scope of this rulemaking. Acosta, Start Printed Page 47255, 10. For the final rule, OSHA has decided to add additional industries to the list of industries that were on appendix B in the proposed rule; these additional industries are listed in Table 1, below. These changes, as described in more detail below, are to the requirement for establishments with 250 or more employees to submit data from their 300A annual summaries to OSHA and to the industries included on appendix B to subpart E of part 1904. That yields a total cost for electronic submission of OSHA Forms 300 and 301 of $133.46 per establishment on average,[38] OSHA disagrees. As indicated by the content of the directive, while OSHA does take a systematic approach to enforcement targeting, OSHA does not agree that any targeting for enforcement resulting from submission of the data from Forms 300, 301, and 300A should necessarily impact all industries in appendix B subpart E equally. However, this section of the preamble provides many examples of the ways in which employers, employees, government agencies, researchers, and other interested parties will use this data to perform more detailed and accurate analyses of workplace safety and health practices, create education and training programs to reduce workplace hazards, develop resources, and conduct studies. The U.S. Poultry and Egg Association commented that OSHA's analysis does not consider that some employers utilize proprietary electronic recordkeeping systems that would require program changes, possibly at a high cost, so that the information could be electronically submitted to OSHA (Docket ID 0053). ), the Council on Environmental Quality (CEQ) NEPA regulations (40 CFR parts 15001508), and the Department of Labor's NEPA Procedures (29 CFR part 11). . OSHA believes that this requirement to submit case-specific data will have significant benefits for occupational safety and health, especially since the requirement applies to certain establishments in higher hazard industries where such reporting will have the greatest impact on reducing injury and illness rates. 1:18cv00117 (D.D.C. As explained in the NPRM and the preamble to this final rule, OSHA did not propose to expand the scope of []1904.41(a)(1). Each nomination must include the nominee's full name, address, phone number and a detailed explanation of the nominee's contribution to the community. . 1681 et seq.) Section 1904.41(a)(2) of the final rule requires establishments that (1) had 100 or more employees at any point during the previous calendar year and (2) are classified in one of the industries listed in appendix B to subpart E of part 1904 to electronically submit certain information from their Forms 300 and 301 to OSHA or OSHA's designee. e.g., include their legal company name as part of their annual submission. For example, private sector employers with 100 or more employees are required to file an EEO1 Component 1 Report with the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, every year (see 42 U.S.C. Therefore, the agency is adjusting the estimated time required to manually submit electronic records from 10 minutes per case per establishment to 15 minutes per case per establishment. OSHA will guard against the publication of information which could directly identify or lead to the identification of workers using the measures discussed above, including the use of automated de-identification technology, supplemented with For example, would it be helpful for OSHA to provide a forms package or software application that exports the required files into a submission-ready format? 801 A number of commenters expressed concern about OSHA's reasoning for the collection and publication of Forms 300 and 301 data in the preamble to the proposed rule ( Concurrent with publication of this final rule, the Department of Labor submitted the final ICR, containing the full analysis and description of the burden hours and costs associated with the final rule, to OMB for approval. Being able to make these identifications allows OSHA to promote safer workplaces in myriad ways. Several commenters urged OSHA to include more industries in appendix B by lowering the cut-off to the three-year national average for private industry. OSHA received several comments on the general benefits of collecting and publishing data from Forms 300 and 301. death, days away from work, job transfer or restriction). OSHA received a number of comments on the proposed rule, which was published in March 2022. 36. Next, turning to the merits of the States' complaint, the court held that OSHA's rescission of the Form 300 and Form 301 data-submission requirements was within the agency's discretion based on its rebalancing of the uncertain benefits of collecting the 300 and 301 data against the diversion of OSHA's resources from other efforts and potential privacy harms to employees. This experience demonstrates OSHA's ability to collect, analyze, and use large volumes of data to interact with establishments where workers are being injured or becoming ill. However, with access only to electronically submitted data from Form 300A and not from Forms 300 and 301, we were limited by an inability to disaggregate by the types of serious injuries and serious illnesses. For example, the National Council for Occupational Safety and Health (National COSH) as well as the Centro de los Derechos del Migrantes pointed to the temporary service industry and the home health care industry as industries with known hazards for which OSHA and the public should have access to injury and illness data (Docket IDs 0048, 0089; see also Docket ID 0049). To reflect this proposed change, OSHA estimated in its PEA that the reduction in the number of establishments required to submit this information would result in a total annual cost savings of $27,077 (87 FR 18549). However, OSHA was concerned that the OIG's report suggested that the burden to ensure reporting falls on the agency when the OSH Act clearly states that it is the employer's responsibility to comply with the standards under Section 5(a)(2). shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job[;]); see also Section 8(g)(1) (The Secretary and Secretary of Health and Human Services are authorized to compile, analyze, and publish, either in summary or detailed form, all reports or information obtained under this section.)). In other words, the proposal would, in some ways, save agency resources by helping the agency be more efficient, Docket IDs 0030, 0050, 0071, 0076, 0087, 0094). A background check highlights potential red flags with a candidate before a final job offer. https://www.dhs.gov/publication/handbook-safeguarding-sensitive-personally-identifiable-information, . Pre-Employment Background Checks: Considerations for Employers When Thus, the assertion by the Employers E-Recordkeeping Coalition, that the principal reason that the data collected pursuant to this proposed rule is published by OSHA presumes and is based on a premise of employer fault, is wrong (see Docket ID 0087). PDF Background Checks in the Hiring Process: A Guide for California For example, increasing the size threshold from 100 or more employees to 250 or more employees would reduce the number of establishments required to electronically submit 300/301 data by 67 percent ( In the NPRM, OSHA argues that its general purpose justifies any rulemaking that presents the potential to improve safety. final rule is $7,098,120. The National Nurses Union commented, An OSHA rule requiring reporting from establishments with 100 or more employees is a superior threshold to the 250-employee threshold. Home Care Ass'n of Am. (1) A background check required by subsection (a) shall be (A) based on a set of the employee's fingerprints obtained by a law enforcement officer and on other identifying information; (B) Under these conditions, OSHA would miss mountains of pertinent information, be flooded by OSHA believes those rulings support its decision here to release non-personal information from the Forms 300 and 301. OSHA notes that 1904.29(a) states that employers must use the OSHA 300 Log, 301 Incident Report, and 300A Annual Summaryor equivalent formswhen recording injuries and illnesses under part 1904. In most cases these assertions were unsupported ( OSHA will monitor the data it receives, and in the future, it may consider new notice-and-comment rulemaking to adjust its approach in light of its experience with the data collected under this final rule. v. et seq. . 57. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. For example, it included a narrative from a meatpacking labor organization:, In 2008, leaders from the UFCW Tyson meatpacking locals union accessed Form 300 logs collected from one meatpacking plant for a one-month period. The first category is establishments that had 20249 employees at any time during the previous calendar year, and are classified in an industry listed in appendix A. In Using the coded OSHA Log case data with narratives as a very large training data set that could be used to improve the autocoding of workers' compensation claims. Broadly speaking, leading indicators are proactive, preventive, and predictive measures that provide information about the effective performance of an employer's safety and health activities. These costs will not affect the economic viability of these establishments. and the number is growing. You must submit the information once a year, no later than the date listed in paragraph (c) of this section of the year after the calendar year covered by the form. This year's proposed rule is now the third such rulemaking by OSHA on injury and illness recordkeeping since 2014. This commenter added that the frequent changes to recordkeeping regulations have resulted in confusion among employers regarding what requirements apply to their business (Docket ID 0072). OSHA discusses the costs to build the data collection system in Section IV, Final Economic Analysis. Start Printed Page 47276 Numerous commenters pointed out the limitations of currently available data from BLS, and the need for more data to produce statistically significant, robust results for more detailed categories of injuries, establishments, and employers. This information will help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk. Thus, it is not possible for OSHA to base appendix A or B on SOII data that use the 2022 NAICS codes, even though the 2022 codes are the most recent ones available. Mid Valley Agricultural Services commented, It is unclear how the proposed rule will result in reductions to injuries/illnesses in the workplace or the frequency and severity of instances. In turn, the agency will be able to more effectively deploy its enforcement and compliance assistance resources to eliminate identified hazards and enhance worker safety and health. For example, the National Employment Law Project (NELP) supported requiring all employers with 250 or more employees to submit information from the Form 300 Log in addition to the Form 300A. As explained in Section II, Legal Authority, the submission requirement serves a substantial government interest in protecting the health and safety of workers, has a strong statutory basis, and uses reasonable, objective criteria for determining which employers must report information to OSHA. In the PEA, OSHA estimated that establishments would take 10 minutes, on average, to familiarize themselves with changes to the recordkeeping requirements in the proposed rule. The agency also finds that this combination of factors furthers the agency's intention of balancing the number of establishments covered and injury and illness cases reported with the burden on employers, as well as not expanding the submission requirement beyond establishments that are already required to report information from the Form 300A. 527 U.S. 555, (1999) (When Congress enacted the ADA, it recognized that federal safety and health rules would limit application of the ADA as a matter of law.)). OSHA's full response to the OIG's report can be found in Appendix B of that report at Finally, if NRF is suggesting that the groups referenced in its comment could somehow determine that a given employer or establishment had a vaccine mandate in place by viewing the Form 300 or 301 data which OSHA plans to make publicly available, OSHA thinks such a thing is unlikely. 45. https://www.osha.gov. The Plastics Industry Association (Docket ID 0086) and Angela Rodriguez (Docket ID 0052) submitted similar comments. This partial exemption for low-hazard industries currently appears in 29 CFR 1904.2. Ultimately, in 2016, OSHA agreed with commenters who stated that reducing the size criterion to 100 would increase the burden on employers with diminishing benefit. In the previous regulation, this requirement was at 1904.41(a)(1). OSHA concludes the final rule is responsive to that report (see OSHA202100060097). Specifically, the opportunity for notice and comment afforded by the NPRM was sufficient to both allow participation by interested parties and fully develop the record. NIOSH made similar comments and added that, currently, employers may compare their injury rates to those of their industry as reported in the SOII, but because of the large number of injury and illness records that will be collected under this rulemaking, employers will be able to compare their injury and illness rates to those of many more specific groups of establishments and employers. . Starting with survey year 2021, BLS expanded collection of case data from all sampled establishments to include details for cases involving days of job transfer or restriction only. In addition, the Seventeen AGs noted, [T]hese benefits will only accrue if OSHA collects and publishes such data. As the Louisiana Chemical Association said, [b]esides the out-of-pocket expenses associated with compliance, there are other administrative burdens, for example, the duplicative work of maintaining two sets of 300 and 301 forms (a hard copy and one form for electronic submission with redacted information) (Docket ID 0042). OSHA believes employers who already own and use commercially available software are unlikely to face any additional costs because aftermarket software vendors will need to upgrade their software to ensure the software does not become irrelevant to the needs of their customers. OSHA reviewed this final rule in accordance with Executive Order 13132 (64 FR 43255 (Aug. 4, 1999)), regarding federalism. Section 24(a) directs the Secretary to create and maintain an effective program of collection, compilation and analysis of work-related safety and health statistics. Finally, OSHA notes the comment from NIOSH suggesting various means of investigating the effect of implementation of this final rule on compliance with the requirements of part 1904 (Docket ID 0035, Attachment 2). Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing. Applying a reporting rule to establishments with 100 or more employees would add an additional 73 hospitals and protect nearly 12,017 additional hospital employees in California alone. However, in this rulemaking, OSHA proposed for only a subset of establishments with 100 or more employees ( 54. . Rather, the court found that OSHA's decision was neither arbitrary nor capricious, Start Printed Page 47328 This is the only new requirement of the final rule, and therefore the only one that imposes new costs on employers. Illinois Imposes New Criminal History Check Requirements on Employers

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