Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: On May 25, 2022, federal OSHA extended the formal comment period for this proposed rule from May 31, 2022 until June 30, 2022.
Under current OSHA regulations, establishments with 250 or more employees in industries that are required to keep their OSHA injury and illness records must submit information from the Form 300A Injury and Illness Log electronically. Establishments with 20 to 249 employees in specific industries listed in Appendix A to Form 300A must also submit their 300A data to OSHA electronically.1
On March 28, 2022, OSHA announced a new proposal to amend its OSHA 300 logs recordkeeping regulation. Included in these changes are requirements for establishments with 100 or more employees in certain designated industries to submit information electronically from their OSHA Forms 300, 301 and 300A once a year. The new proposal maintains existing requirements for establishments with 20 to 99 employees in certain industries to submit information electronically from their OSHA Form 300A annual summary once a year. OSHA also proposes to update the classifications system used to determine the list of industries covered by the electronic submission requirement, and to require establishments to include their company name when submitting information to OSHA.
OSHA claims the rule changes will empower it to improve workplace safety and health by:
- allowing OSHA to use its resources more effectively by better enabling the agency to identify workplaces where workers are at greatest risk from specific hazards, and to target its compliance assistance and enforcement efforts accordingly;
- improving the ability of employers to compare their own injury and illness data on hazards with the data from similar establishments in the same industry;
- improving the ability of stakeholders to make more informed decisions using recent establishment-specific, case-specific, injury/illness information; and
- improving research on occupational safety and health.
The proposed rule was published in the Federal Register on March 30, and comments on the proposal are due by May 31, 2022.
OSHA’s history with electronic submissions of OSHA 300 logs
In 2016, OSHA issued a rule, which required employers to submit their annual injury and illness information to OSHA electronically. Under the 2016 revisions, establishments with 250 or more employees were routinely required to keep records and had to submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA’s designee electronically once a year. Establishments with 20 to 249 employees in certain designated industries had to submit electronically information from their OSHA annual summary (Form 300A) to OSHA or OSHA’s designee once a year.
The 2016 regulation was overruled by subsequent rulemaking in 2019. In 2019, OSHA issued a final rule that amended the recordkeeping regulations to remove the requirement for establishments with 250 or more employees, which were routinely required to keep records, to submit information electronically from their OSHA Forms 300 and 301 to OSHA or OSHA’s designee once a year. Both final rules were challenged in court by industry groups, which alleged that the publication of establishment-specific injury and illness data would lead to misuse of confidential and proprietary information by the public and special interest groups and that the publication of the data exceed OSHA’s authority under the OSH Act.
What does this mean for employers?
If the rule goes into effect as proposed, OSHA would be able to keep closer tabs on illnesses and injuries in the workplace that might normally not be scrutinized by OSHA because they are not reportable under OSHA’s current reportable criteria and therefore not collected by OSHA. The data submitted also will be available under the Freedom of Information Act to the general public.
If the rule is adopted in its current form, employers will need to take extra due diligence when drafting their 301A, their OSHA 300 and their 300A summary. All three types of documents will be scrutinized. OSHA will not only have recordkeeping data showing what injuries are occurring in the workplace, but also how they are occurring in the workplace because of the submittal of the 301A logs. OSHA can utilize the information to identify emerging hazards, support agency response to those hazards, and target employers whose workplaces may include those hazards. The data will allow the agency to focus its Emphasis Program inspections on establishments with specific hazards. If COVID-19 cases and other illnesses continue to affect employers, for example, OSHA conceivably would have the ability to use this data for future rulemaking relating to infection disease regulations.
Employers that have concerns about the rule – including having this data publicly available through Freedom of Information Act requests – should provide comment before May 31, 2022.
1 Please note that there are some State OSHA plans that have more stringent reporting requirements. For example, the Minnesota State OSHA plan has not adopted the Federal OSHA annual reporting requirements and requires ALL employers with 10 or more employees to annually file OSHA Form 300A regardless of industry.