OSHA Finalizes Recordkeeping and Reporting Requirements

On July 17, 2023, the Occupational Health and Safety Administration (OSHA) published its final rule about the required electronic submission of injury and illness data. It’s been a long time coming.

The journey to here

Most employers know the reporting and recordkeeping system OSHA has in place today. Form 300 is the injury/illness log. Form 301 is the injury/illness report. Form 300A is the injury/illness log summary. Covered employers are expected to maintain these records for at least five years and, each year, post a summary of injuries and illnesses recorded during the previous year. Current and former employees (or their representatives) could request copies of these records. The log and summary documents and all supplemental records were also made available to OSHA inspectors who might visit the facility.

In 2016, OSHA added an annual electronic data submission requirement for certain employers: establishments with more than 250 employees were required to submit data from all three recordkeeping forms, and establishments with 20-249 employees in specific high-hazard industries had to submit data from Form 300A. Establishments with fewer than 20 employees had no electronic submission requirements.

In 2019, following strong pushback from employers, OSHA modified the rule and removed the requirement for establishments with more than 250 employees to submit data from Forms 300 and 301 and only submit Form 300A. Employers were also required to submit their Employer Identification Number (EIN) with this summary report.

In 2021, the Biden administration made it clear that they would be modifying the electronic submission requirements once again and published a notice of proposed rulemaking in March 2022. That proposed rule has now been finalized.  

Another critical factor in this journey was OSHA’s announcement, in April 2022, of their intention to actively target employers who did not comply with their new electronic data submission requirements. OSHA uses a Non-Responder Enforcement Computer Program to “match newly opened inspections against a list of potential non-responders to OSHA’s collection of Form 300A data through the Injury Tracking Application (ITA).” This enforcement action directly responded to a 2021 Government Accountability Office report, which found that “employers did not report data for more than 50 percent of workplaces that met the reporting criteria” and that OSHA “lacks a plan to correct deficiencies.”

So what’s new?

The new rule preserves the previous electronic reporting requirements but has added a new category of establishments that now must report. Establishments with 100 or more employees in specific high-hazard industries — listed in the new Appendix B to Part 1904, Subpart E — are now required to submit additional information from Forms 300 and 301, along with their Form 300A summary, to OSHA each year. OSHA estimates that 52,092 businesses are operating in industries listed in Appendix B. 

The new rule continues to require employers with more than 250 employees — and those with 20-249 employees in specific industries — to keep injury/illness records (Forms 300 and 301) and electronically submit that information to OSHA annually (Form 300A). The new rule also continues to require establishments with 20-249 employees in industries listed in Appendix A to Subpart E to keep injury/illness records and electronically submit that information each year.  

Some industries are listed by name in Appendices A and B. Others are covered by a broad NAICS category in Appendix A and a more precise code in Appendix B. For example, Appendix A lists Manufacturing (NAICS 31-33), while Appendix B lists dozens of specific manufacturing sectors. 

For incident reporting, employers must include the date, location, severity of the injury or illness and details about how the injury or illness occurred. While OSHA plans to protect personal information, it does plan to use and publish the data it collects. The agency will use this data in the prioritization of enforcement activities. OSHA also publishes business-specific and case-specific injury and illness information online through the Freedom of Information Act library.  

How should employers prepare?

This new reporting rule increases OSHA’s ability to target employers for “programmed inspections” — like the recently announced National Emphasis Program (NEP) related to warehousing and distribution centers. Inspection priorities for almost any programmed inspection are now based on Form 300A data. With the new reporting requirements, OSHA will eventually have more detailed data and history for each reporting establishment. For some employers, this could trigger OSHA’s new instance-by-instance citation policy. 

Employers operating in an industry labeled “high-risk” under the new rule should take steps now to ensure they can easily collect and incorporate the additional data — from Form 300 and 301 — into their annual electronic submission of the Form 300A Summary Report.  

Employers should also review their internal procedures to make sure information is recorded accurately. Evaluate each injury or illness to make sure that OSHA standards require it to be recorded. Take steps to avoid the entry of extraneous details into your injury and illness records. 

According to OSHA’s new fact sheet, the ITA will begin accepting 2023 injury and illness data on January 2, 2024. The due date to complete this submission is March 2, 2024.  

If you have any questions about these new recordkeeping and reporting obligations and the potential exposure you might face, don’t hesitate to contact Orr & Reno for assistance. 

About the author: James F. Laboe

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