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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
September 9, 2005
Mr. Thomas D. O'Connor
National Labor Relations Board
Division of Advice - 10th Floor
1099 14th Street, NW
Washington, DC 20005
Dear Mr. O'Connor:
This is in response to your August 5, 2005 e-mail question to the Department of Labor's Office of the Solicitor concerning the Occupational Safety and Health Administration's (OSHA's) injury and illness recordkeeping requirements at 29 CFR 1904. Your inquiry has been forwarded to this office so that OSHA may provide you with an official interpretation of its regulation.
In your e-mail you ask whether employee representatives have access to OSHA 300 Log information for both union and non-union employees. Specifically, you ask whether an employer may redact names of non-union employees when it turns over the OSHA 300 Log to an employee representative.
OSHA's regulation at 29 CFR 1904.35(b)(2) provides that employees, former employees, their personal representatives, and authorized employee representatives have the right to access the current OSHA 300 Log, as well as any stored OSHA 300 Log(s) for any establishment in which the employee or former employee has worked. The employer must provide to the requester one free copy of the OSHA 300 Log(s) by the end of the next business day.
Under Part 1904, the employer must provide access to the entire OSHA 300 Log and may not delete the names and cases of non-union employees. Section 1904.35(b)(2)(iv) states:
(iv) May I remove the names of the employees or any other information from the OSHA 300 log before I give copies to an employee, former employee, or employee representative?
No, you must leave the names on the OSHA 300 Log. However, to protect the privacy of injured and ill employees, you may not record the employee's name on the OSHA 300 Log for certain "privacy concern cases," as specified in paragraphs 1904.29(b)(6) through 1904.29(b)(9).
OSHA has determined that it is important for employees, former employees, and their representatives to have complete access to the entire 300 Log, including all names of employees listed on the form. The Agency's long standing practice of providing access to all of the information on the 300 Log permits employees and their representatives to be totally informed about the employer's recordkeeping practices, and the occupational injuries and illnesses recorded in the workplace. The data included on the 300 Log assists employees and their representatives in their voluntary efforts to uncover and eliminate workplace safety and health hazards. In addition, the name of the employee listed on the 300 Log is important in understanding and verifying recordable cases. In many cases it may be necessary to speak with a specific employee to determine the conditions that lead to the injury or illness, and this is impossible without access to employee names. The removal of non-union employees listed on the 300 Log would diminish an employee representative's ability to uncover and prevent safety and health hazards in the workplace.
We note that for certain injuries and illnesses addressed in 29 CFR 1904.29, the employer is required to protect personal privacy by omitting the employee's name from the OSHA 300 Log. Instead, the employer enters "privacy case," and keeps a separate, confidential list containing the identifying information. An employee, former employee, personal representative, or authorized employee representative is not entitled to see, or obtain a copy of, the confidential list ofnames and case numbers for privacy cases. If you have any further questions, please contact the Division of Recordkeeping Requirements at 202-693-1889.
Keith Goddard, Director
Directorate of Evaluation and Analysis