In April 7, 2023, the Occupational Safety and Health Administration (OSHA) submitted its latest injury and illness recordkeeping proposal to the Office of Information and Regulatory Affairs (OIRA). Submission to OIRA usually marks the last step in the rulemaking process before a Final Rule is published. Injury and illness recordkeeping has been the subject of regulatory attention by the last three administrations.

The Obama administration issued new reporting requirements and the Trump Administration moved to roll some of them back. Now, the Biden administration is seeking to restrengthen electronic reporting requirements.

CURRENT POLICY

OSHA’s current regulations require employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments. Employers covered by the regulation must record each recordable employee injury and illness on an OSHA Form 300, which is the “Log of Work-Related Injuries and Illnesses.” Employers must also prepare a supplementary OSHA Form 301 “Injury and Illness Incident Report” that provides additional details about each case recorded on the OSHA Form 300. At the end of each year, employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the “Summary of Work-Related Injuries and Illnesses,” and post the form in a visible location in the workplace. The current recordkeeping regulation also requires certain employers to electronically submit injury and illness data to OSHA.

Section 1904.41(a)(1) requires establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A summary to OSHA once a year. Establishments with 20-249 employees in certain designated industries to electronically submit information from their Form 300A summary to OSHA once a year.

PROPOSED CHANGES

Under the latest OSHA proposed rule, establishments with 20 or more employees in certain designated industries (Appendix A of the rule) would continue to electronically submit information from their Form 300A annual summary to OSHA once a year. Designated industries of interest to IIAR members in Appendix A include: Construction, Manufacturing, Grocery Stores, and Warehousing and Storage.

However, the proposed rule would eliminate the requirement for all establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A to OSHA. Instead, establishments with 100 or more employees in certain designated industries (Appendix B of the rule) would be required to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. Designated industries impacting IIAR members in Appendix B include: fruit and vegetable preserving and specialty food manufacturing, dairy product manufacturing, animal slaughtering and processing, seafood product preparation and packaging, bakeries and tortilla manufacturing, other food manufacturing, beverage manufacturing, grocery and related product merchant wholesalers, beer, wine, and distilled alcoholic beverage merchant wholesalers, grocery stores, and warehousing and storage.

In addition, OSHA is proposing to require establishments to include their company name when making electronic submissions to OSHA.

The proposed requirement for establishments with 20 or more employees in certain designated industries to electronically submit information from their Form 300A to OSHA once a year is essentially the same as the current regulation. For establishments with 100 or more employees in certain designated industries, the proposed requirement to electronically submit information from their Forms 300 and 301 to OSHA on an annual basis represents a change from the current regulation. The proposed requirement would provide systematic access for OSHA to the establishment specific, case-specific injury and illness information that these establishments are already required to collect.

Additionally, OSHA intends to post the collected establishment-specific, case specific injury, and illness information online. OSHA has stated that the agency will seek to minimize the possibility that worker information, such as name and contact information, will be released. OSHA does not intend to include information that reasonably identifies individuals directly, such as employee name, contact information, and name of physician or health care professional, in the published information.

OSHA believes the expanded public access to establishment-specific, case specific injury and illness data would allow employers, employees, and other stakeholders to make informed decisions about workplace safety and health at a given establishment, and this accessibility will ultimately result in the reduction of occupational injuries and illnesses.

OSHA asserts that the changes will allow 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. OSHA also argues the new policies will improve the ability of employers to compare their own injury and illness data on hazards with the data from similar establishments in the same industry.

OSHA has committed to complete the rulemaking process by June 2023. The agency made this commitment in response to a lawsuit brought in the U.S. Court of Appeals for the District of Columbia Circuit by organizations representing labor challenging the Trump administration’s rollback of the Obama era recordkeeping requirements.

Once the final rule is published, IIAR members are encouraged to familiarize themselves with the new policies, understand which requirements apply to them, and make preparations to ensure they meet their compliance responsibilities for injury and illness reporting.