OSHA Wants Your Data
Apr 11, 2022OSHA wants to change its injury and illness reporting rules again. They also launched an initiative to find employers who are not filing.
Finding Non-Responders
The federal government is strengthening its enforcement of injury and illness reporting requirements. OSHA is planning to proactively identify employers who fail to report specific annual data on Form 300A. The reporting deadline for filing Form 300A — summary injury and illness data for 2021 — was February 1, 2022. By mid-March, only 289,849 establishments had submitted their OSHA Form 300A information for 2021.
On April 4, 2022, OSHA announced its intentions to use 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 ITA.” The system automatically reports all matches to the appropriate OSHA area office, and “if the area office determines that the establishment on the list is the same establishment where the inspection was opened, OSHA will issue citations for failure to submit OSHA Form 300A Summary data.”
This enforcement action directly responds 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.”
Recordkeeping and Reporting Changes Proposed
A few days before announcing this new enforcement initiative, OSHA published a notice about proposed amendments to the current recordkeeping and reporting rule.
Under the current rule, employers with more than 250 employees — and those with 20 – 249 employees in specific industries — must file Form 300A once a year. The proposed changes could re-instate some of the filing requirements eliminated in 2019 — including the posting of establishment-specific data on the OSHA website. According to the March 30, 2022 announcement, the proposed changes would:
- Require establishments with 100 or more employees in specific high-hazard industries to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year.
- Update the classification system used to determine the list of industries covered by the electronic submission requirement.
- Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit Form 300A to OSHA annually.
- Require establishments to include their company name when making electronic submissions to OSHA.
Establishments with 20 or more employees in specific high-hazard industries would continue to be required to electronically submit information from their Form 300A annual summary to OSHA annually.
These are Major Changes
If the rule goes into effect as proposed, OSHA will have access to significantly more data. The agency will have access to form 300 log detail for each reportable injury and illness and use it to identify emerging hazards, support OSHA’s response to those hazards, facilitate the targeting of workplaces that include those hazards, and aid enforcement efforts. This data will also undoubtedly inform any future infectious disease rulemaking.
These amendments would also increase the employer’s recordkeeping responsibilities exponentially.
Industry groups will undoubtedly challenge the new rule in court if it goes into effect in its current form. The argument challenging the rule will be the same as several years ago when the 2016 regulation requiring electronic data submission was initially proposed. OSHA’s clear intention to make the data it collects public — including all data from employer 300 logs and 301 forms — makes this legally problematic. Many industry groups believe that the publication of establishment-specific and case-specific injury and illness data exceeds OSHA’s authority under the OSH Act and could lead to the abuse of confidential and proprietary information by special interest groups.
What Should Employers Do?
Employers are encouraged to be extra diligent in their OSHA recordkeeping in the months ahead. Use language carefully. Minimize the extraneous. Evaluate all illnesses and injuries to make sure OSHA standards require they be recorded and reported. Remember that OSHA will use all the data it receives to prioritize inspection targets in its special emphasis programs.
Employers are also encouraged to submit comments on the proposed rule before May 31, 2022. Use the Federal e-Rulemaking Portal to submit comments electronically.
If you have any questions about your OSHA recordkeeping and reporting responsibilities — or have received a citation for any reason – don’t hesitate to contact Orr & Reno for assistance.
About the Author: James Laboe
