On January 7, the Occupational Safety and Health Administration (OSHA) announced via the Federal Register that it would extend the deadline for the public to submit comments on OSHA’s proposed revisions to its recordkeeping regulations. The new deadline to submit comments is Saturday, March 8, 2014.
OSHA’s November 2013 proposed rule had two major components:
- It requires employers with 250-or-more or certain employers of 20-or-more employees to electronically submit their OSHA 300 and 300A logs, either quarterly or annually; and
- It confirms OSHA’s intent to publish all employers’ logs online.
This second component ignited controversy among the regulated community. Oklahoma Labor Commissioner Mark Costello surprised many by opposing the rule. “The proposal seems to be more about politics rather than public safety policy,” wrote Costello in his comments. “The experimental idea of OSHA using ‘naming and shaming’ as a means to improve safety is unwise. The unintended consequences are likely to do more harm than good. It’s the functional equivalent of painting a scarlet letter on individual businesses while creating a pick list for trial lawyers nationwide.” Costello argues that publication of employers’ recordkeeping logs would be used by unions and trial lawyers to distort company safety records.
Other comments suggest that OSHA underestimated the overall cost of the rule. Some estimate costs may exceed $100-$300 million and question whether the rule violates the Unfunded Mandates Reform Act of 1995.
Many comments are also concerned over the idea of a government website hosting vast amounts of personal data. Some OSHA recordkeeping forms contain an employee’s name, home address, date of birth, health care professional information, and treatment information. OSHA has not provided any explanation for how the agency plans to encrypt and protect sensitive data in its custody, or what recourse an individual may have in the event of a data breach.
John F. Martin is a shareholder in the Washington, D.C. office of Ogletree Deakins.