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OSHA Requires Employers to Keep More Records

Sept. 29, 2023
Agency will use the data to target what it deems high-risk employers.

The Occupational Safety and Health Administration (OSHA) has published a final rule that expands the scope of workplace injury and illness information certain employers are expected to submit electronically to the agency each year, and that data will be made public and used in the future by the agency to select its enforcement targets.

The rule requires establishments with 100 or more employees in what are deemed to be “high-hazard industries”—identified based on an establishment’s North American Industry Classification Systems (NAICS) code—to electronically submit information from their OSHA illness and injury report Forms 300 and 301 to the agency once a year.

Among those NAICS-defined industries are warehousing and storage; general freight trucking; couriers and express delivery services; grocery and related product merchant wholesalers; hardware manufacturing; food manufacturing; steel product manufacturing from purchased steel; nonferrous metal (except aluminum) production and processing; architectural and structural metals manufacturing; and machine shops; turned product; and screw, nut and bolt manufacturing.

For those employers who are subject to federal OSHA jurisdiction, the new rule will take effect on Jan. 1, 2024. Following that, employers must submit the required information covering calendar year 2023 electronically using OSHA’s Injury Tracking Application (ITA) by March 2, 2024.

The agency had proposed the new regulation last year and has been using its reporting requirements to crack down on companies targeted for organizing by labor unions, such as Amazon’s warehouse and distribution facilities.

OSHA stressed that the change would advance its mission to empower workers by increasing transparency in the workforce. The agency also said in a guidance it issued last year that it is using information from employer reports to improve its ability to deploy enforcement and compliance assistance resources to identify workplaces where workers are perceived to be at high risk.

The rule will increase OSHA’s ability to target employers in “programmed inspections,” such as the recently published national emphasis program (NEP) for warehousing and distribution centers, according to John Surma and David Walston, attorneys with the law firm of Ogletree Deakins.

They note that the lists OSHA is using target employers in that NEP is based on Form 300A data. “Now, OSHA will have access to a different form of the same data with increased details about the injuries and illnesses that those employers’ employees are experiencing, the names of injured employees, the mechanisms of injury, etc.”

This knowledge could significantly increase the exposure of employers in those establishments if OSHA analyzes the data to determine areas within the worksite that need to be subject to scrutiny, the attorneys add. The new rule also will allow OSHA to enter a site with names of employees who were injured or have been ill and target them for interviews, instead of randomly asking that employees be produced for interviews.

Another issue for employers is that the rule could impose substantial additional costs for them. This could be the result of their obligation to use OSHA’s ITA system for filing their reports electronically, which is said to be unreliable and hard to use, Surma and Walston point out. The situation is so bad that they suggest that the new requirement may overwhelm the system.

“Employers might anticipate that compliance with this new requirement will take far longer than expected,” they said. “In addition, the updated rule’s expansion of coverage will likely mean a number of employers do not realize they have this responsibility and may fail to comply with the requirement to upload the required data.”

Risks of Noncompliance

Noncompliance can result in a citation in and of itself, which, when combined with the instance-by-instance citation policy, could lead to massive penalties if OSHA were to apply that policy per each employee injury or illness that an employer fails to report electronically—which the agency could do, they warn.

“While that outcome would not be expected under normal circumstances, employers with issues with recordkeeping or high injury rates may face that outcome,” Surma and Walston explain. The possibility is amplified by the fact that in recent years federal agencies have experienced poor response rates for filing of required reports, which could be the result of many employers’ lack of awareness of the requirements rather than they’re intentionally refusing to file.

Employers in the 26 state jurisdictions that operate their own occupational safety and health programs should be mindful that their compliance obligations may differ from those who answer to federal OSHA, observe attorneys Daniel Wolff and Siyi Shen of the Crowell & Moring law firm. They noted some of the specific changes to employer federal reporting:

• For establishments with 250 or more employees that are routinely required to keep workplace injury and illness records, there is no change to the annual Form 300A submission requirements.

• For establishments with 20-249 employees in the high-hazard industries designated in Appendix A of subpart E, there is also no change to the annual Form 300A submission requirements. “As a matter of business hygiene, however, these employers should review the revised Appendix A list to verify whether their establishments are covered (OSHA states that the revision does not substantively affect covered establishments),” Wolff and Shen recommended.

• For those establishments with 100 or more employees who are required to submit Form 300A information, they should review the new Appendix B of subpart E: if an establishment is covered by a NAICS code that is listed in Appendix B, it will be required beginning in 2024 to electronically submit the required information from Forms 300 and 301 (in addition to their Form 300A obligations).

Wolff and Shen also stress that this rulemaking only applies to record-keeping and the electronic submissions of those records. All employers covered by the OSH Act, including establishments exempt from routine injury and illness record-keeping, are still required to report work-related fatalities and the other types of work-related injuries that OSHA requires to be reported.

The existing OSHA recordkeeping regulations also require that:

• Establishments with 250 or more employees that are already required to routinely keep OSHA injury and illness records to also electronically submit information from the Form 300A summary to OSHA once a year;

• Worksites with 20-249 employees in certain designated industries (those listed on Appendix A of 29 CFR part 1904 subpart E) to also electronically submit information from their Form 300A summary to OSHA once a year.

The new rule updates the NAICS codes listed in Appendix A to subpart E to reflect a more current version of those codes, and expands electronic submission obligations for establishments listed in a new Appendix B to subpart E. They also warn employers to keep in mind that the NAICS codes listed in Appendix B are a subset of the NAICS codes listed in Appendix A.

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