More employers will be required to submit workplace injury and illness information under a final rule released by the U.S. Occupational Safety and Health Administration (OSHA) on July 17. The new rule will take effect on Jan. 1, 2024.
OSHA is amending its regulations to require certain companies to electronically report information as follows:
- Worksites with 100 or more employees in certain high-risk industries must electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. Added to the list of industries were logging, furniture-related product manufacturing, durable goods wholesalers, taxi and limousine services, and hunting and trapping.
- Worksites with 250 or more employees that are subject to OSHA’s record-keeping regulation will continue to be required to submit information from their OSHA 300A form to OSHA annually.
- Worksites with 20 to 249 employees in certain high-risk industries will continue to be required to submit information from their OSHA 300A form to OSHA annually.
The size threshold is based on one physical work location, not the size of the company as a whole.
OSHA will not collect employee names or addresses, the names of health care professionals who provided treatment, or locations where medical treatment was provided away from the worksite.
OSHA already requires employers to keep records of work-related injuries and illnesses that resulted in death, loss of consciousness, medical treatment beyond first aid, days away from work, restricted work or transfer to another job. Employers must complete the OSHA 300, 301 and 300A forms based on these records. The new final rule requires certain employers to submit these records to OSHA and does not change the record-keeping requirements for other employers not subject to this new rule.
Certain industries are exempt from injury and illness reporting, including restaurants, insurers, schools, gas stations, clothing stores, bookstores and banks.
Under the new reporting rule, OSHA will have a heightened ability to target employers with programmed inspections, said John Surma, an attorney with Ogletree Deakins in Houston.
OSHA intends to post some of the injury and illness data online and in a searchable database for the public. Therefore, “employers should ensure that only the required information is documented on these injury reports,” said Micah Dickie, an attorney with Fisher Phillips in Atlanta. “Carelessness in filling out the forms could lead to a PR nightmare. … Many employers take a broad approach and over-record. That practice just became more fraught, and the cost will likely outweigh the benefits of over-recording.”
The online posting “provides a potential treasure trove of information which has not previously been available and, because employers are forced to provide the information in the manner requested by OSHA on its forms, will not give employers the opportunity to provide the full story, thus potentially leading to the publication of misleading or incomplete information on the incidents,” said Shelagh Michaud, an attorney with Nixon Peabody in Providence, R.I.
If an employer doesn’t comply with the record-keeping and reporting requirements, it “would be subject to the issuance of a citation and, for repeated violations, increased penalties and assessments,” said Bill Moore, an attorney with Clark Hill in Detroit.
“It is not clear yet how OSHA intends to issue citations for violations of this requirement, but given its instance-by-instance citation policy, OSHA could determine that each injury the employer failed to report is a violation and issue a penalty for each—which could result in extremely large penalties,” Michaud said.
Preventing Harm
OSHA stated that the goal of the new rule is to decrease the number of workplace injuries and illnesses.
“OSHA will use these data to intervene through strategic outreach and enforcement to reduce worker injuries and illnesses in high-hazard industries. The safety and health community will benefit from the insights this information will provide at the industry level, while workers and employers will be able to make more informed decisions about their workplace’s safety and health,” said U.S. Assistant Secretary for Occupational Safety and Health Doug Parker.
But instead of preventing injuries, “the rule seems to be designed to make it quicker and easier for OSHA to begin investigations after the occurrence of a work-related injury or illness,” Moore said.
Surma agreed: “The records maintained are referred to as lagging indicators and are not viewed by most safety professionals as particularly useful in reducing injury and illness rates. Instead, I think this data will be used to more carefully target employers for programmed inspections and gather data that will be used to justify future OSHA standards.”
However, the new reporting requirement and public scrutiny may prompt some employers to prioritize safety improvements that they have in process, Dickie said.
The final rule confirms that companies cannot retaliate against employees for reporting work-related injuries or illnesses.
Employers may encounter some challenges using the online system for reporting. “The Injury Tracking Application is notoriously buggy and hard to use, and this [new rule] will cause a number of employers to expend an inordinate amount of time working on this or give up trying due to frustration,” Surma said. “The financial impact [on companies] will be well beyond the projected $136 per employer.”
