OSHA’s New Electronic Reporting Rule Creates New Obligations for Some Employers

Beginning January 1, 2024, more employers will be required to electronically submit detailed information about their workplace injuries and illnesses to the Occupational Safety and Health Administration (OSHA) every year.

OSHA recently published a final rule amending its workplace injury and illness recordkeeping regulations (29 CFR Part 1904) to require electronic submission of injury and illness data that employers were previously only required to keep in their internal records.

OSHA requires covered employers to maintain records of their employees’ work-related injuries and illnesses on three forms:

• Form 300A Summary of Work-Related Injuries and Illnesses, which aggregates injury and illness data for an establishment over the course of a calendar year.
• Form 300 Log of Work-Related Injuries and Illnesses, which contains details about each injury or illness case such as the body part involved, the type and severity of the injury or illness, and the days away from work needed to recover.
• Form 301 Injury and Illness Incident Reports, which contain additional information about the affected employee and the circumstances that led to an injury or illness listed on the OSHA 300 Log.

Currently, employers covered by electronic submission requirements are only required to submit the summary data from Form 300A, not the more detailed information on Form 300 and Form 301.

The new rule changes that.

Under the new rule, employers in designated industries with more than 100 employees must submit Form 300 and Form 301, in addition to Form 300A, annually using OSHA’s Injury Tracking Application (ITA). In addition, OSHA will require employers to include their company name when making electronic submissions. Employers will need to provide this detailed injury and illness information for all of calendar year 2023 by March 2, 2024.

The covered industries are listed in a new appendix to the regulations. The following industries are a selection of the designated industries in Appendix B to Subpart E of Part 1904:

1121    Cattle Ranching and Farming

1133    Logging

2213    Water, Sewage and Other Systems

2381    Foundation, Structure, and Building Exterior Contractors

3115    Dairy Product Manufacturing

3117    Seafood Product Preparation and Packaging

3118    Bakeries and Tortilla Manufacturing

3119    Other Food Manufacturing

3261    Plastics Product Manufacturing

3312   Steel Product Manufacturing from Purchased Steel

3323    Architectural and Structural Metals Manufacturing

3325    Hardware Manufacturing

3327    Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing

4244    Grocery and Related Product Merchant Wholesalers

4413    Automotive Parts, Accessories, and Tire Stores

4441    Building Material and Supplies Dealers

4451    Grocery Stores

4522    Department Stores

4841    General Freight Trucking

4859    Other Transit and Ground Passenger Transportation

4921    Couriers and Express Delivery Services

4931    Warehousing and Storage

5621    Waste Collection

6221    General Medical and Surgical Hospitals

7112    Spectator Sports

7131    Amusement Parks and Arcades

7211    Traveler Accommodation

OSHA will publish much of the data it collects from Form 300 and Form 301 on its public website, after identifying and removing information that could reasonably be expected to identify individuals directly, such as individuals’ names and contact information. OSHA believes publishing this data “will allow OSHA, employers, employees, researchers, safety consultants, and the general public to use the data in ways that will ultimately result in the reduction of occupational injuries and illnesses.”

The rule increases the amount of detailed information available to OSHA such as the injuries and illnesses that employees are experiencing, the names of injured employees, the mechanisms of injury, etc. OSHA can use the information in many ways, including to:

• • Decide which employers to inspect.
  • Prepare for inspections.
  • Target certain industries.
  • Predetermine what to scrutinize during an inspection.
  • Identify employees who have been injured or ill, as opposed to randomly asking for employees to be produced for interviews.

Consequently, the new rule increases employers’ exposure to OSHA citations and penalties.

 Employers can and should prepare to comply with the new rule now to mitigate their risks and exposure. Employers can do the following:

• • Determine whether you are covered by the new rule.
  • Review your recordkeeping procedures to ensure you are accurately completing OSHA Forms 300, 301 and 300A.
  • Begin to gather and organize Forms 300, 301 and 300A for the 2023 calendar year.
  • Create an Injury Tracking Application (ITA) account and a gov account if you do not already have them.
  • Determine how you will submit Forms 300, 301 and 300A into ITA. You can manually enter your data, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via an API (application programming interface).
  • Determine who will submit the Forms into ITA. Ensure that you become familiar with ITA to facilitate the submission process.
  • Prepare a schedule that ensures all Forms 300, 301 and 300A for calendar year 2023 are submitted before March 2, 2024. Submitting forms before the due date avoids potential technical issues that can arise if ITA is overwhelmed by traffic.

Please contact Maritza Sanchez or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.