​"Oops, [it] did it again." Analogous to Ms. Spears's lyric, the Occupational Safety and Health Administration (OSHA) once again causes a reset across multiple industries with its third iteration of an electronic data reporting rule. Beginning January 1, 2024, for employers in specific high-hazard industries with establishments of 100 or more employees, employers must resume electronically submitting Forms 300 and 301 to OSHA. Responding to input from employee and business stakeholders, OSHA's new rule revives, but also modifies, prior requirements in an effort to balance interests and concerns across all constituencies of diverse sizes in varied industries. OSHA's attempt to please all, however, has added complexity to the rule's original operation.

​What You Need to Know:

• A new OSHA Electronic Data Reporting Rule will affect employers in certain high-hazard industries with establishments having 100 or more employees. 
• Electronic Data Reporting to OSHA has fluctuated with different administrations.
• Electronically submitted injury and illness data is expected to become publicly available through OSHA.

​Background

Since OHSA's inception in 1971, its regulations have required employers to maintain records of workplace injuries and illnesses. Employers have grown familiar with this record-keeping system by staying up to date on the associated paperwork: Form 300 (the injury log), Form 301 (injury report), and Form 300A (log summary). Seeking to capitalize on this mandatory recording, in 2016, OSHA added an annual electronic data submission requirement for certain employers: (1) establishments with 250 or more employees had to submit data from all three record-keeping forms—300, 301, and 300A; and (2) establishments with 20-249 employees in certain high risk industries had to submit data from Form 300A. Establishments with fewer than 20 employees had no electronic submission requirement. In 2019, following multiple challenges, OSHA modified the rule to remove any requirement for establishments with 250 or more employees to submit data from Forms 300 and 301. This revised rule left these establishments with the same requirement as those in high-risk industries with 20 or more employees—submit 300A data only. Submitting employers also had to electronically submit their Employer Identification Number (EIN).

A new administration in 2021 initiated modifying electronic data submission requirements to balance the underlying concerns with prior versions. These efforts led to the March 2022 notice of proposed rulemaking and request for comments. That proposed rule was finalized and published on Friday, July 21, 2023.

New Electronic Reporting Rule

As OSHA continues to iron out the details of its new electronic reporting requirements, the final 2023 rule differs from the proposed rule, creating four different categories of reporting requirements:

Essentially, the new rule preserves the prior electronic reporting requirements and parameters, but adds a new category of establishments that must report—those in industries on Appendix B with 100 or more employees. For establishments that fall into multiple categories, e.g., over 250 employees subject to recordkeeping requirements and in an industry on Appendix B, they must follow the most stringent reporting requirement. Like before, under the new rule, employers must complete electronic data submissions no later than March 2, 2024 and similar dates thereafter.

In reporting, employers must provide their company's full legal name. For incident data from the 300 log or 301 report, employees must include the date, location, severity of injury or illness, and details about the worker injured and how the injury or illness occurred. Employers, however, need not report a worker's name or address or other personally identifiable information (PII). Further, OSHA does not plan to collect or publish PII or personal health care information.

OSHA's Rationale for the Revised Rule

Although OSHA will protect PII and other sensitive information, it does intend to use and publish the electronic data collected under this new electronic reporting rule. Electronically reported data will help guide OSHA in addressing specific hazards and conducting enforcement activities, such as inspections and citations or outreach. Further, OSHA will use this information to identify hazards in a particular industry, such as a new tool causing multiple repeated injuries. With expanded data collection, OSHA can also prepare more accurate, precise, and targeted statistics about workplace injuries and illnesses. Finally, this collected and publicized data will assist both employees and businesses alike. The data will help job-seekers make more informed decisions about employment offers and businesses make more informed decisions about potential collaboration partners.

Implications for Businesses

Despite OHSA's vacillating electronic reporting requirements, this most recent version adds to OSHA's expanded regulatory presence. With increased data, OSHA will make more targeted and purposeful inspections, possibly leading to increased fines and penalties. Further, employees and businesses may use publicized data to decline to work for, or with, certain companies. Further, the collected data presents a narrow and limited view of an employer's safety, because the statistics generated about injuries and illnesses do not reveal whether any standard was violated, whether employees had prior safety training, or any other mitigating factors. OSHA's collected and published data could lead to misinformed or misguided business decisions. In this way, the "compliance by shame" underlying OSHA's electronic reporting requirement has its drawbacks.

Finally, the revised electronic reporting requirement contributes to the already growing OSHA regulatory presence from increased funding, a modified instance-by-instance policy, and an adjusted Severe Violator Enforcement Program. Navigating this new environment will require counsel competent in OSHA compliance and enforcement matters.