Are You Ready?Nov 08, 2023
The new OSHA reporting rule requires the electronic submission of more data from more employers
It’s not too early for employers — particularly those in specific industries — to consider their upcoming injury and illness reporting responsibilities to the Occupational Safety and Health Administration (OSHA). While the reporting deadline is still a few months away — March 2, 2024 — employers should be aware that the recordkeeping and reporting rules have changed again for 2024, and the reports you send to OSHA after the first of the new year may be different from the reports you sent last year. Many employers will be required to submit a lot more information this year.
Last July, OSHA announced the creation of four different categories of electronic reporting obligations. As of January 1, 2024, employers with less than 20 employees have no electronic reporting obligations. Establishments with 20-249 employees and listed in Appendix A of 29 CFR 1904 are only required to file Form 300A–Summary. Employers in high-hazard industries with 100 or more employees and listed in Appendix B to Subpart E of Part 1904 must submit OSHA Form 300–Log of Work-Related Injuries and Illnesses, Form–301-Injury and Illness Incident Report, and Form 300A–Summary. Establishments with over 250 employees in all covered industries must file Form 300A–Summary. This information must be submitted electronically, using OSHA’s online Injury Tracking Application (ITA).
OSHA has been attempting to implement the electronic submission of injury and illness data for several years, and due to various challenges and administrative delays, many companies never submitted Forms 300 and 301 under the first version of this rule. Since 2019, no employer of any size was required to submit anything more than Form 300A-Summary.
Employers should prepare themselves by reviewing OSHA’s latest guidance on filling out the required forms and the specific information requested on each form. There are several reasons for employers to bring additional, thoughtful attention to what is articulated and how everything gets recorded and submitted this year. Chief among them is that the electronic submission of all this data will significantly increase OSHA’s ability to target specific employers for programmed inspections in 2024 — and forever after.
Know your NEPs and LEPs
OSHA will use the data they’re collecting not only to prioritize their inspection targets but also to predetermine if the employer is subject to the agency’s instance-by-instance citation policy. Any employer covered by one or more of the agency’s National Emphasis Programs (NEPs) or Local Emphasis Programs (LEPs) is already a target for inspection. OSHA’s regional offices will be using the additional data being harvested from employers to identify emerging issues, evaluate an offender’s progress in addressing and eliminating problems, and pursue and penalize chronic offenders — more quickly than ever before.
There are currently 12 active OSHA NEPs — programs targeted at industries that traditionally have more hazards than others — operative at OSHA: Combustible Dust, Crystalline Silica, Fall Protection, Hazardous Machinery, Heat, Hexavalent Chromium, Lead, Primary Metal Industries, Process Safety Management, Shipbreaking, Trenching and Excavation, and Warehousing.
There are also six Local Emphasis Programs (LEPs) operative for Region 1 (CT, ME, MA, NH, RI, and VT), where my law practice is based: Noise, Powered Industrial Trucks, Cranes, Fall Hazards, Tree and Landscape Operations, Residential Construction, and Seafood Processing.
All of OSHA’s Regional Offices will use Form 300A data to target specific employers in their jurisdiction covered by any of these NEPs or LEPs. Until now, in most instances, an OSHA Compliance Officer had only the most basic information — the Form 300A–Summary — before an on-site inspection. After January 1, 2024, OSHA will have significantly more information before knocking on the employer’s door: details about the injuries and illnesses a workforce is experiencing, the names of affected employees, and many other things.
Employers operating in “high-risk” industries should take immediate steps 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.
If they still need to do so, employers should also evaluate each injury or illness in their database to make sure that OSHA standards require it to be recorded. Take steps now to avoid the entry of extraneous details into your injury and illness records.
If all goes according to plan, the ITA will begin accepting 2023 injury and illness data on January 2, 2024. All submissions must be completed by 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