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98 CommerCial ConstruCtion & renovation — January : February 2014 James W. Boyan III is a labor and employment law litigator at Pashman Stein, a law frm based in Hackensack, N.J. On Nov. 8, 2013, the Occupational Safety and Health Administration (OSHA) published a proposed rule that has the potential to drastically increase the number of em- ployers required to electronically submit injury and illness records to the agency. This rule may have far-reaching effects on employers if OSHA adopts it in its current form. OSHA currently requires many employers, including those in the construction industry with 11 or more employees, to maintain occupational injury and illness records (employ- ers with 10 or fewer employees also can be required to maintain these records if notifed in writing by OSHA or the Bureau of Labor Statistics). These employers must maintain three types of occupational injury and illness records: • Form 300 – Logs of work-related injuries and illnesses • Form 300A – Summaries of work-related injuries and illnesses • Form 301 – Injury and illness reports for each injury or illness The current regulations do not require most employ- ers to provide copies of these records to OSHA unless the agency has requested them by letter or demanded them in connection with an on-site inspection. If OSHA has not requested the records, employers only are required to notify the agency of workplace fatalities or accidents that involve the hospitalization of three or more employees. Employers are required to post their Form 300A summaries from the prior year in the workplace between February 1 and April 30 of each year. Employers in certain industries with historically high rates of occupational injuries and illnesses currently are required to submit their Form 300A summaries to OSHA approximately once every three years through OSHA's Data Initiative (ODI). At present, employers can respond to ODI requests in hard copy or electronic format. OSHA uses the infor- mation that it collects through this program to target employers with higher than average injury and illness rates for increased enforcement activity in connection with the agency's site specifc targeting program (SST). OSHA's proposed rule has three components. First, employers with more than 250 employees will be required to submit all of the injury and illness records discussed above to OSHA electronically (Forms 300 and 301 must be submitted on a quarterly basis and Form 300A on an annual basis). Second, employers with 20 or more employees in certain industries, including the construction industry, will be required to electronically submit their Form 300A Summaries to OSHA on an annual basis. Third, and most importantly, OSHA will post informa- tion from the injury and illness records online and make them available to the general public. During a Nov. 7, 2013 news conference, OSHA's chief, Dr. David Michaels, claimed that the proposed rule is "not an enforcement initiative." He also said that "the proposal does not add any new requirement to keep records; it only modifes an employer's obligation to transmit these records to OSHA." While Dr. Michael's statements techni- cally are true, they signifcantly downplay the considerable effect that the proposed rule will have on employers. Potential consequences The proposal almost certainly will lead to more OSHA inspections and citations. The agency already uses infor- mation from the ODI program to target employers with above-average injury and illness rates through the SST program. The proposed rule drastically will increase the amount of injury and illness information that OSHA will receive, which will enable it to target more employers. In addition, posting injury and illness records online may result in additional claims against employers, including OSHA retaliation claims and work- ers' compensation claims by employees and personal injury claims by non-em- ployees. The records also could provide fodder for unions during organizing campaigns and allow employers with lower injury and illness rates to unfairly disparage their competitors. In addition, the proposal will lead to additional ad- ministrative costs and burdens on employers, especially small employers and employers that are not computer savvy. Finally, the information may mislead prospective employees and customers about an employer's safety record. As most employers know, occupational injuries aren't necessarily a sign of an unsafe workplace. Many workplace injuries are caused by factors outside of the employer's direct control. CCR OSHA currently requires many employers, including those in the construction industry with 11 or more employees, to maintain occupational injury and illness records. OSHA's proposal to post your company's injury records online By James W. Boyan osHa iNspectioN CCR-JanFeb.14_48-.indd 98 2/7/14 2:27 PM