By existing OSHA regulations, most employers (those with more than 10 employees) are required to complete and maintain records pertaining to serious work-related injuries and illnesses, using the OSHA 300 Log, OSHA 301 Incident Report and OSHA 300A Annual Summary. Certain employers in low-risk industries as determined by OSHA (such as law offices, realtors) are exempt and not required to keep these records. In addition, all employers that are required to keep injury and illness records must report to OSHA any workplace incident resulting in a fatality, in-patient hospitalization, amputation, or loss of an eye.
Under a new rule that becomes effective January 1, 2017, certain covered employers will be subject to additional reporting obligations requiring the electronic submission of certain workplace illness and injury information to OSHA. (Under current regulations, employers are not required to provide illness and injury data to OSHA except upon request, as in the case of an OSHA inspection, or in the case of fatality, in-patient hospitalization, amputation, or loss of an eye.) The new rule will not change the existing recordkeeping requirements noted above.
The employers covered by the new rule and the additional reporting requirements are as follows:
- Establishments with 250 or more employees in non-exempt industries (those currently required to keep OSHA injury and illness records) must electronically submit information from OSHA Forms 300 – Log of Work-Related Injuries and Illnesses, 300A – Summary of Work-Related Injuries and Illnesses, and 301 – Injury and Illness Incident Report.
- Establishments with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses (such as construction and manufacturing operations) must electronically submit information from OSHA Form 300A. This link lists industries with historically high workplace injury/illness rates. Covered employers must electronically submit the required injury and illness information annually. OSHA will provide a secure website with three electronic submission options: manual entry of the data into a webform. Uploading of CSV files to process single or multiple establishments at the same time, and electronic data transmission via an API (application programming interface) for users of automated recordkeeping systems. The site is scheduled to go live in February 2017.
The new reporting requirements will be phased in over two years according to the following schedule:
– For covered employers with 250 or more employees in industries covered by the recordkeeping regulation
- only 2016 Form 300A information must be submitted in 2017 – by July 1
- all required 2017 injury and illness information (Forms 300A, 300, and 301) must be submitted by July 1, 2018, and
- beginning in 2019 and every year thereafter, the required information must be submitted by March 2
– For covered employer establishments with 20-249 employees
- 2016 Form 300A information must be submitted by July 1, 2017,
- 2017 Form 300A information must be submitted by July 1, 2018, and
- beginning in 2019 and every year thereafter, the information must be submitted by March 2.
Some of the electronically submitted data will also be posted to the OSHA website and become accessible to the public. According to OSHA, Personally Identifiable Information (PII) that could be used to identify individual employees will be removed and not posted. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. However, employers and industry groups have expressed concern that increased reliance upon recordkeeping information when targeting establishments for inspection, and the public availability of the information, will serve to hold employers accountable for the mere occurrence of a recordable incident and create other unwarranted consequences detrimental to employers. The recordkeeping standards have historically been thought of as a no-fault system: work-related incidents need to be recorded even if they are unpreventable. The new rule could create an incentive to under-report and reward employers that do so, while punishing employers with robust safety programs and effective incident reporting systems. But the new rule is here to stay, so only time will tell if these employer concerns are warranted.
The new rule also includes provisions designed to promote complete and accurate reporting of work-related injuries and illnesses. These include: employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the OSHA Job Safety and Health – It’s the Law worker rights poster; an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employee reporting; and, an employer may not retaliate against employees for reporting work-related injuries or illnesses. These provisions became effective August 10, 2016, but enforcement has been delayed by OSHA until November 1, 2016, to allow time for covered employers to adjust.
Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post/the new reporting rule, and for further guidance regarding OSHA compliance and workplace safety issues.