OSHA releases employer injury, illness data for 2016-2018

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Washington — OSHA has released work-related injury and illness data from a three-year period of electronic submissions of Form 300A.

Announced in a Sept. 4 press release, the release of the electronic injury and illness annual summaries from 2016 to 2018 comes after two June court decisions involving Freedom of Information Act cases: Center for Investigative Reporting v. U.S. Department of Labor and Public Citizen Foundation v. U.S. Department of Labor.

In the former case, Magistrate Judge Donna M. Ryu, from the U.S. District Court for the Northern District of California, ruled that Form 300A data isn’t confidential because, in part, employers are required to post the form in a prominent spot in their workplaces each year. Employers also must give a copy of Form 300A to current and former employees and their personal representatives, at no charge, upon request.

Establishments with 250 or more employees and those with 20 to 249 employees in certain “high-hazard” industries are required to submit Form 300A electronically each year. In an article published Aug. 25 on its news site Reveal, CIP reports that around 40% of the establishments required to submit data in 2016 didn’t do so. That percentage increased to more than 50 in each of the next two years.

Along with calendar year files, OSHA provides a data dictionary on its website.

“The fact that an employer provided data does not mean that the employer is at fault, that the employer has violated any OSHA requirements, that OSHA has found any violations, or that the employee is eligible for workers’ compensation or other benefits,” OSHA says in the release.


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Employers’ injury, illness data is public information, federal judge rules

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Oakland, CA — Data from OSHA’s Form 300A is not confidential – in part because employers already are required to share injury and illness information with current and former employees, who in turn are free to share it, a federal judge has ruled.

“There are no restrictions on further dissemination of Form 300A information; as OSHA explained in its final rule in 2016, ‘[e]mployees or their representatives can … obtain and make public most of the information from these records at any time, if they wish,’” Magistrate Judge Donna M. Ryu, from the U.S. District Court for the Northern District of California, wrote in her June 4 decision. “Therefore, the Form 300A information is both readily observable by and shared with employees, who have the right to make the information public.”

Ryu’s ruling was on a lawsuit stemming from a Freedom of Information Act request made by the nonprofit news organization Center for Investigative Reporting, seeking information from OSHA Forms 300A, 300 and 301. OSHA no longer collects information from the latter two forms.

In response to the FOIA request, OSHA and the Department of Labor argued that Form 300A information was confidential under two exemptions, one of which exempts “law enforcement” records from public disclosure. After the center filed its lawsuit in April 2018, OSHA then claimed that Form 300A information fell under Exemption 4 in the FOIA. This exemption protects “trade secrets and commercial or financial information [that is] obtained from a person and [is] privileged or confidential.”

In denying the exemption, Ryu pointed out that employers must post their completed Form 300A annually “in a conspicuous place or places where notices to employees are customarily posted” for at least three months after the year covered by the records. Employers also must keep 300A forms for five years and give them “to current and former employees and their personal representatives upon request at no charge.”

Lawyers for DOL also argued that OSHA “has taken the position that the Form 300A data should be kept private” since November 2017. Ryu writes that the evidence shows OSHA did not make public statements about that change in position until June 2018, “which is six months after the first deadline for Form 300A electronic submissions.”

In a June 5 blog post on its news website Reveal, CIP states: “Understanding which employers are the most dangerous could motivate more employers to improve safety and provide workers with a deeper understanding of the risks associated with their jobs. The records can also help hold companies accountable.”

D. Victoria Baranetsky, Reveal’s general counsel, called the decision “a great win for freedom of access,” adding, “Not only did the court order the government to disclose the records but it, it stated that what qualifies as confidential is not a subjective test.’”