Federal Court Decision Requires OSHA to Make Employer 300A Data Public

The U.S. District Court for the District of Columbia recently resolved a two-year legal battle between OSHA and Public Citizen, finding that OSHA must now make Form 300A occupational injury and illness summary data collected from approximately 237,000 employers available to the public.

In May 2016, OSHA issued a final rule called “Improve Tracking of Workplace Injuries and Illnesses” (aka “the electronic reporting rule”). This final rule supplemented OSHA’s Recordkeeping Standard by requiring some establishments who are already subject to recordkeeping requirements to electronically transmit their workplace injury and illness data directly to OSHA.

Under the final rule, establishments with 250 or more employees, as well as establishments in certain high-risk industries with between 20 and 249 employees, must electronically submit their form 300A data from their Form 300A summary data to OSHA via the Agency’s online Injury Tracking Application (ITA).

The 2016 final rule had stated that “OSHA intends to post the data from these submissions on a publicly accessible Web site,” while also noting that “publication of specific data fields will be in-part restricted by applicable federal law, including the Freedom of Information Act (FOIA), as well as specific provisions within part 1904.” The rule also noted that OSHA did not intend to post any information on the website that could be used to identify individual employees.

In 2017, Public Citizen submitted Freedom of Information Act (FOIA) requests to OSHA for the 300A data the agency had initially received from employers. OSHA did not release this information in full, citing Exemption 4 under FOIA for “confidential information.” Public Citizen countered that this information did not pass the test of confidentiality, because the Recordkeeping Standard requires employers to post the same data in physical form in an accessible location in the workplace from February 1st through April 30th of each year for the previous year’s injury and illness summary data. Additionally, OSHA had in the past often publicly shared 300A data they collected during enforcement activity, and had provided 300A forms in response to FOIA requests.

In June 2020, a magistrate judge recommended that the Court enter judgment for Public Citizen on the grounds that it does not find the records to be covered under the confidentiality exemption under FOIA Exemption 4. The Magistrate also stated that OSHA had not demonstrated that Form 300A data is intended to be kept private or under close control by the employer. The U.S. District Court for the District of Columbia agreed and entered an order requiring that OSHA produce the requested records by August 18, 2020. 

If you have an establishment covered by OSHA’s Electronic Reporting Rule, this decision means that your reported 300A data for calendar years 2016 through 2019 (the calendar years for which OSHA has received data so far) will likely become public information. It also means that you can expect 300A information for 2020 and beyond to become public information as well.

This decision places even greater urgency on employers to ensure that their injury and illness data is accurate. For instance, employers often make mistakes on their Form 300, such as double-counting an injury as both “days away from work” and “job transfer or restriction”. Errors like these ultimately create uncertainty about overall numbers of incidents on the 300A. 

Another unique recordkeeping challenge employers are facing right now is the ongoing confusion over whether workplace cases of COVID-19 are recordable illnesses. We have addressed this issue in past issues of our NFFS newsletters, and OSHA has issued temporary enforcement guidance to its regional administrators on how to address compliance with injury and illness recordkeeping requirements during the COVID-19 pandemic. It would be a good idea for all employers, including those covered under OSHA’s electronic reporting rule, to be familiar with the guidance in this enforcement memo. Errors in classifying COVID-19 cases could dramatically affect the accuracy of the number of occupational illnesses indicated on the employer’s Form 300A.