Why US contractors fear new injury reporting rules will leak sensitive information

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Contractors in the United States of America (USA) have expressed their fears that new rules introduced last week on reporting accident and injury data could result in the inadvertent exposure of sensitive information about businesses and their employees.

The US Department of Labor last week (17 July) announced a new rule that expands the submission requirements for injury and illness data provided by certain employers.

The rule, which becomes effective on 1 January 2024, applies to establishments with 100 or more employees in high-hazard industries, including construction.

It requires them to submit information from their Form 300-Log of Work-Related Injuries and Illnesses, and Form 301-Injury and Illness Incident Report electronically to the department’s Occupational Safety and Health Administration (OSHA) once a year.

The forms contain information about employees including home addresses, dates of birth and detailed information about injuries.

The final rule also retains the current requirements for electronic submission of information from Form 300A from establishments with 20-249 employees in certain high-hazard industries and from establishments with 250 or more employees in industries that must routinely keep OSHA injury and illness records.

The new rule effectively reprises the form of a 2016 rule proposed under President Barack Obama’s administration, undoing provisions in a 2019 final rule promulgated under the Trump administration.

It will give OSHA establishment-specific and case-specific information about workplace injuries and illnesses that it hasn’t previously had.

OSHA said it would publish “some of the data” collected on its website to allow employers, employees, prospective employees and customers to use information about a company’s workplace health and safety record.

It said it believed that providing public access to the data would reduce occupational injuries and illnesses.

Contractors’ privacy fears

But groups representing contractors have not welcomed the news.

Associated Builders and Contractors (ABC) vice president of regulatory, labour and state affairs Ben Brubeck, said, “The final rule will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.”

He added, “Over the years, high-quality, safety-conscious contractors have been targeted by unions and union-front organisations making false or distorted claims of ‘unsafe’ contracting, based on isolated incidents taken out of context.

“The records at issue in the final rule are not reliable measures of a company’s safety record or its efforts to promote a safe work environment, as they provide no context about the injuries or illnesses reported.”

Brubeck also warned that smaller companies would be affected by expanding the mandate to companies with 100 or more employees. “The recorded information can easily be backtracked to identify specific injuries and illnesses and thereby the medical information of individuals in the workplace, violating their privacy.”

Associated General Contractors of America (AGC) also expressed its concern about the rule when contacted by International Construction.

It said in a statement, “Accurate reporting of workplace injuries and illnesses is key to contractors’ efforts to continuously improve their safety and health culture and performance.

“However, OSHA has not provided any supporting data to indicate that publicly disclosing this information will help contractors, employees or the public.

“Our primary concern is the potential mischaracterisation of a contractor’s safety and health programme in the absence of proper context.”

The Coalition for Workplace Safety (CWS), of which the AGC is a member, previously wrote to OSHA in 2022 to express its concerns to the new rule when it was still at the proposal stage.

CWS members said they were “deeply troubled” by the proposed rule, arguing that it would require electronic submission of employer summary data and individual employee injury and illness data “on a much larger scale”.

OSHA response to safety concerns

When asked by International Construction what data it planned to publish, OSHA said that “most” of the data collected would be published.

But to protect employees’ identities, it said it would not collect names or addresses and would convert birth dates to ages. It said it would also remind employers not to submit information that could directly identify workers such as names, addresses and telephone numbers.

Meanwhile, OSHA said it would withhold information on age, gender, date hired and whether the worker was treated in an emergency room and/or a hospital overnight as an in-patient.

Finally, OSHA said it would use “automated information technology” to detect and remove any information that could directly identify workers.

Why OSHA wants the information

Expanding on why it thought collecting the extra data would improve worker safety, OSHA said it would improve employers’, employees’ and the government’s ability to identify and mitigate hazards.

But it also claimed that the information would make it easier to identify the workplaces where workers are at high risk and improve its ability to use its enforcement resources.

Up until now, OSHA has not had establishment-specific and case specific information, it said. “Now, employers and the public will be able to effectively analyse and better understand injuries at workplaces and use that information in practical ways for outreach or interventions in different industries and geographic areas,” it added.

It also argued that it would improve research on the distribution and determinants of workplace injuries and illnesses, increase the public health surveillance information available for public institutions, and support private-sector initiatives to improve workplace safety and health.