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OSHA: Legal questions delay implementation of electronic reporting of injury data

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August 17, 2017

Less than one week before its scheduled compliance date, OSHA officials delayed a new electronic recordkeeping rule that’s being challenged in more than one federal courtroom.

The U.S. Department of Labor (DOL) announced that the new compliance date would be December 1, giving OSHA five months more to review “questions of law and policy” pertaining to the rule finalized last year.

The rule would require about 466,000 employers nationwide to electronically file their Form 300A summaries of workplace injuries and illnesses with OSHA. It has been controversial in large part because employers dislike the idea that OSHA plans to publish some of their injury and illness data online.

Employers have also opposed the rule’s prohibition of incentive and testing programs associated with injury reporting, Bloomberg BNA reported. Workers’ groups contend that ending such programs will protect employees from being ostracized by their employers for voicing safety concerns. With clearer protections for whistleblowers, the rule requires that employers make clear to staff that anyone has the right to alert OSHA to problems without fear of retaliation. 

The rule did not change the types of information to be filed with OSHA each year, but it did change how employers were supposed to file the data. Employers would be required to use a secure web-based application to submit the data electronically. That would allow OSHA to capture the information such that it could report the safety records of each employer publicly and in a searchable format.

While OSHA promised that the information would be “scrubbed” of personally identifiable details about workers, there were concerns that healthcare providers, who also face responsibility for preventing data breaches of protected health information (PHI), could face problems. 

“The rule presents a number of challenges for all employers, but I believe that healthcare employers carry an even heavier burden than employers in other industries,” said Valerie Butera, an attorney in the employment, labor, and workforce management practice area of the Washington, D.C., law firm Epstein Becker Green, last year.

“No computer system is infallible, and this step opens the doors to an inadvertent disclosure of private employee information,” Butera added. “The heightened threat to healthcare employers is the very real possibility that patients’ protected health information could be breached as well.”

Although the new online system was not ready for the original July 1 compliance date, the online Injury Tracking Application was made accessible on August 1, OSHA announced. The system offers three ways to submit data: entering information into an online form, uploading a CSV file, or automatic data transfer using an application programming interface. 

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