On July 21, 2023, the Occupational Safety and Health Administration (OSHA) published a final rule in the Federal Register amending its regulation on Improved Tracking of Workplace Injuries and Illnesses. The final rule becomes effective on January 1, 2024.
Currently, establishments with 250 or more employees in any industry must submit information from their Form 300A Injury and Illness Logs electronically to OSHA, and only certain types of establishments (e.g., construction, manufacturing, department stores and warehouses) with 20 to 249 employees are required to submit such data. OSHA's final rule expands on these existing electronic recordkeeping obligations by requiring establishments with 100 or more employees from workplaces listed in Appendix B of the rule to submit their 300 Log, corresponding 301 Incident Reports, and 300A Annual Summary Data. Workplaces listed in Appendix A with 20-249 employees will have to submit their 300A Annual Summary Data. Workplaces with 250 or more employees in any industry will continue to submit their 300A Annual Summary Data.
OSHA stated it will use the data to intervene with strategic outreach and enforcement to reduce worker injuries and illnesses in high-hazard industries. Thus, the increased data reporting will assuredly result in inspections in areas or establishments with high injury and illness rates, potentially subjecting employers in certain industries to additional inspections and regulatory scrutiny. OSHA believes that, by casting a wider net for injury and illness data, it can craft a more calculated approach to address specific hazards in workplaces.
What risks do employers face under the new e-recordkeeping rule?
Under OSHA's expanded electronic recordkeeping rule, the agency will have access to substantially more injury and illness data than they do today. With this additional data comes increased compliance risks. OSHA is currently authorized to seek and obtain an employer's injury and illness logs upon request, and such requests are typically made at the outset of an onsite inspection. Under the new regulatory framework, however, OSHA will no longer need to request an employer's recordkeeping logs in order to obtain injury and illness data. Rather, beginning with the first compliance date of March 2, 2024, many employers will have an affirmative and recurring legal obligation to provide their summary and detailed injury and illness data to OSHA. Notwithstanding this new electronic reporting obligation, we can expect OSHA to continue requesting injury and illness logs during inspections of all employers who are required to keep such records.
An employer's injury and illness logs provide OSHA with a unique view into the effectiveness of an employer's workplace safety and health program. OSHA's review of an establishment's injury and illness data can identify specific injury trends, ultimately leading to further scrutiny of an employer's overall workplace safety and health program. OSHA's recordkeeping standard provides, "[r]ecording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated." However, OSHA's Field Operations Manual instructs inspectors to "disclose that he/she may seek to expand the scope of the inspection if there is evidence (e.g., from injury and illness records, plain view hazards, or employee interviews) that there may be violative conditions in other portions of the workplace."1 Therefore, it is clear that OSHA can expand an inspection of an employer's workplace based on its review of injury and illness logs.
Additionally, employers should exercise the utmost care in completing their OSHA recordkeeping forms, as such information will be available to both OSHA inspectors, as well as potentially members of the public under the Freedom of Information Act. Whether intended or unintended, the consequence is that unions and other third parties will utilize this data—which under prior law they were not privy to—to navigate litigation and take stringent bargaining positions.
What can employers do to prepare?
OSHA has stated that there are significant benefits associated with the collection and publication of Forms 300 and 301 data that outweigh the risk to employee privacy. OSHA intends to post the collected establishment, case-specific injury and illness information online. Covered employers should be prepared to post their 300A summaries from February 1 through April 30, 2024. Covered employers should also be prepared to submit electronically their 300, 300A, and/or 301 incident reports for 2023 calendar year data by March 2, 2024.
Latest trends show that OSHA meticulously reviews these logs to identify each and every potential discrepancy and can issue citations in the thousands of dollars depending on the number of incorrections. Even issues such as incorrectly addressing preexisting conditions or checking an extra box is an inaccuracy.
Comprehensive recordkeeping audits are a valuable tool in helping employers identify potential OSHA recordkeeping compliance gaps and injury and illness trends that could draw OSHA's attention. Under OSHA's new electronic recordkeeping rule, employers can expect heightened scrutiny of their recordkeeping practices and increased enforcement for recordkeeping violations. Therefore, employers should ensure that they are prepared with an in-depth compliance review of their injury and illness logs going back five years.2 Furthermore, by recognizing their own trends, employers are able to enact corrective action before OSHA reviews the data, allowing employers to stop violations before an inspection.
Littler will be hosting in-person OSHA recordkeeping workshops on OSHA's new recordkeeping rules in September in Washington, D.C and New York City.
Footnotes
1. OSHA Field Operations Manual (CPL 02-00-164), Chapter 3, Section 5, Scope of Inspection.
2. 29 CFR 1904.33 requires employers to maintain OSHA recordkeeping data for five years following the end of the calendar year that the records cover.
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