In an era of fluctuating obligations, ramped-up enforcement and increased penalties, employers are wise to ensure they are fully compliant with current Occupational Safety and Health Administration (OSHA) recordkeeping and electronic reporting requirements.
Current Requirements
Employers with more than 10 employees have long been required to maintain a record of work-related fatalities, injuries and illnesses using OSHA 300, 300A, and 301 forms (or equivalent forms for establishments not partially exempt based on industry). For covered employers, severe injuries and fatalities must be reported promptly to OSHA—within eight hours of worker fatalities and within 24 hours of worker amputations and hospitalizations. The following employers are now also required to electronically submit to OSHA information from their 300A logs:
Importantly, “establishment” is defined as a single, physical location where business is conducted or where services or industrial operations are performed. As such, many larger businesses may be comprised of multiple “establishments,” and thus may have obligations to submit information for multiple business locations. Establishments with fewer than 20 employees are not currently required to routinely submit information electronically to OSHA. Electronic reporting requirements do not modify an employer’s obligation to complete and retain injury and illness records — they simply require certain employers to affirmatively submit some of the information from their records to OSHA electronically. Covered establishments must submit information from their Form 300A by March 2 of the year following the calendar year covered by the form.
How to Electronically Submit Required Information
Employers bound by electronic reporting requirements are required to submit information through a secure website provided by OSHA. This is not a heavy lift: It will take a typical employer an estimated 10 minutes to create an account and 10 more minutes to input the required information from the Form 300A. For those who do not have the equipment or internet connection needed to electronically report, submissions may be made from public facilities, such as libraries.
Anti-Retaliation
OSHA strictly prohibits employers from retaliating against employees for reporting work-related injuries and illnesses. The current recordkeeping rules provide OSHA with the right to cite an employer for retaliation even where an employee does not file a complaint or where an employer has a program that discourages employees from reporting due to a threat of retaliation. This is likely to serve as a key enforcement tool in encouraging employers to accurately maintain injury records, especially under an administration acutely focused on enforcement.
As a reminder, employers should be informing their workforces of employees’ right to report workplace injuries and illnesses without fear of retaliation. To satisfy this requirement, employers should both post the OSHA “It's The Law” poster and establish a reporting procedure that does not discourage employees from reporting work-related injuries and illnesses.
Reporting Requirements in the Pipeline
Employers should be aware that OSHA published a proposed rule on March 30, 2022 that would modify existing reporting obligations to require:
- Establishments with 20+ employees in certain high-hazard industries to continue to electronically submit Form 300A information annually to OSHA
- Establishments with 100+ employees in the highest-hazard industries to submit both Form 300 Log and Form 301 Incident Report information annually to OSHA. (these establishments would continue to be required to electronically submit information from their Form 300A)
Under the proposal, establishments with 250 or more employees not in designated high-hazard industries would no longer be required to routinely electronically submit recordkeeping information to OSHA. This proposal stems from a widely felt sentiment that the electronic submission of industry-specific information from Forms 300 and 301 will improve workplace safety and health by more effectively allocating OSHA’s resources to workplaces where workers are at greatest risk of injury, and to target its compliance assistance and enforcement efforts accordingly. The comment period for the proposed rule closed in July 2022. A final rule has not yet been issued.
Employers seeking to hone their OSHA compliance practices should consider performing self-audits on recordkeeping and electronic submission practices and training the appropriate individuals responsible for enforcement of workplace safety and health policies. Employers also should continue to monitor developments on electronic reporting requirements.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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