To Submit or Not to Submit: OSHA Is Asking the Question

6 min

On March 28, 2022, the Occupational Safety and Health Administration (OSHA) announced a proposed rule to amend its occupational injury and illness recordkeeping regulation. The proposed amendment will require certain employers, according to their size and industry, to electronically submit injury and illness information to OSHA. Specifically, establishments with 100 or more employees in certain designated industries will be required to electronically submit information from their OSHA Forms 300, 301, and 300A once per year. If the proposed rule is finalized, OSHA intends to make some of the data obtained from these annual electronic submissions available to the public on a searchable online database.

OSHA published the proposed rule in the Federal Register on March 30, 2022, and is currently seeking comment from the public through May 31, 2022. Employers with concerns may submit comments on the proposed rule as a whole or any one or more of the specific questions posed by OSHA regarding its efficacy.

Injury and Illness Recordkeeping Requirements

Under OSHA's current recordkeeping regulation, covered employers (that is employers in most industries with 10 or more employees, but excluding certain identified "low hazard" industries) must keep records of each fatality, injury, and illness that is (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria on the Log of Work-Related Injuries and Illnesses (OSHA Form 300). These recordable injuries and illnesses include any work-related fatality; work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job; work-related injury or illness requiring medical treatment beyond first aid; and a work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums. OSHA has provided the decision tree copied below to assist covered employers in determining whether to record on OSHA Form 300. See 29 CFR 1904.4(b)(2).

Decision Tree

The form itself requires inclusion of the employee's name and job title, date and location of the injury or illness, description of the injury or illness, and outcome of the injury or illness (i.e., days away from work, transfer to another job, etc.).

In addition to OSHA Form 300, these employers must also prepare a supplementary Injury and Illness Incident Report (OSHA Form 301), which provides additional details about how each injury and illness recorded on the OSHA Form 300 log occurred. Finally, on an annual basis, covered employers are required to prepare a Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), which reports the establishment's total injuries and illnesses for the year by category and other general information about the workplace, such as the total number of hours worked by all employees during the calendar year. Pursuant to the regulation, covered employers must post this OSHA Form 300A in a visible location within the workplace.

The Electronic Submission of OSHA Forms

Certain employers are already required to electronically submit some injury and illness data to OSHA under the current recordkeeping regulation. Indeed, establishments with 250 or more employees in industries that are required to keep these records and establishments with 20 to 249 employees in designated industries must submit information from OSHA Form 300A via OSHA's Injury Tracing Application. 29 CFR 1904.41.

In 2016, under the Obama administration, OSHA issued a rule that expanded the electronic submission requirements, obliging establishments with 250 or more employees to submit information from their OSHA Forms 300, 300A, and 301. Yet, the rule was superseded and reduced in scope by subsequent rulemaking in 2019 under the Trump administration. Both the 2016 and 2019 rules regarding the electronic submission of injury and illness information faced legal challenges, claiming the publication of injury and illness data exceeded OSHA's authority under the Occupational Safety and Health Act (OSH Act) and posed risks to the confidential information and trade secrets of businesses. If this rule moves forward, it is likely to be met with similar challenges.

The Proposed Amendments

Under the proposed rule, the electronic submission requirement for establishments with 20 or more employees in certain designated industries remains essentially the same, though one industry would be added and 13 would be removed.

However, the proposed rule would remove entirely the requirement currently imposed on establishments with 250 or more employees not in a designated industry to electronically submit information from OSHA Form 300A. Instead, establishments with 100 or more employees in certain designated industries (now listed in Appendix B) would be required to electronically submit information from OSHA Forms 300, 301, and 300A once per year. Establishments would also need to include their company name when making these electronic submissions. Accordingly, the proposed rule would reach many more employers and implicate a much larger subset of data from each employer.

Lastly, the proposed rule seeks to update the classification system used to determine the list of industries subject to these electronic submission requirements.

OSHA intends to publish the "establishment-specific, case-specific injury and illness information" received through these submissions online, though personal identifiable information of individual employees will be withheld, and the release of such information will be minimized to the greatest extent possible, including through the use of automated software to identify and remove such information. For instance, public information on this searchable database will include all data fields from OSHA Form 300 and fields 10-18 on OSHA Form 301, such as the description of the incident, the nature of the injury or illness, and the cause of the injury or illness.

In support of the proposed rule, OSHA has suggested these amendments are intended to further its statutory directive to ensure safe and healthful working conditions by:

  • Enabling OSHA to identify workplaces at risk for specific hazards and target compliance assistance and enforcement more effectively;
  • Allowing employers to compare their own injury and illness data with that of others in the same industry;
  • Encouraging employers to abate hazards and prevent injuries and illnesses; and
  • Providing more complete information to job seekers.
Key Considerations for Employers

If the proposed rule is adopted, OSHA may use the additional information obtained to target its efforts toward particular hazards and workplaces with those hazards. Accordingly, employers that may become subject to these electronic submission requirements should take extra care when drafting their documentation, particularly summaries in OSHA Form 301. Proper drafting will also become especially important because there may be greater use of the information submitted by plaintiffs' lawyers, competitors, and union organizers due to the increased ease of access. Thus, employers should generally be prepared for their documentation to be scrutinized more closely.

Choosing the proper NAICS code for each business location will also continue to be pivotal moving forward, as the applicable NAICS code may very well be the determinizing factor for whether employers are subject to these additional requirements. OSHA will also be able to use the relevant NAICS code when assessing the data received and selecting individual establishments for inspection.

Employers with questions regarding OSHA's recordkeeping and reporting requirements, the proposed amendments to the current recordkeeping regulation, or any other issues discussed in this article are invited to contact the authors and any other attorney in Venable's Labor and Employment Group.

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