By David M. Whitaker

OSHA’s regulation at 29 CFR § 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their business establishments. The regulation was first issued in 1971. Covered employers must record each recordable employee injury and illness on an OSHA Form 300, known as the “Log of Work-Related Injuries and Illnesses.” Recordable injuries and illnesses include those that involve death, loss of consciousness, days away from work, restriction of work, transfer to another job, medical treatment other than first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.

Employers must also prepare a supplemental OSHA Form 301 “Injury and Illness Incident Report” that provides details about each case recorded on the OSHA 300 Log. At the end of each year, covered employers must prepare a summary report of all injuries and illnesses recorded on the OSHA300 Log, known as the “Summary of Work-Related Injuries and Illnesses,” and are required to post this form in the workplace in a conspicuous location. Failure to meet these injury and illness recording and posting requirements can result in OSHA citations and penalties.

Until recently, employers were not required to submit their illness and injury reports to OSHA unless they were requested by the Agency (often during an OSHA site inspection). During the waning days of the Obama Administration, OSHA published a new rule which requires certain employers to electronically submit their OSHA-mandated employee injury reports (with employee name field information deleted) to OSHA, which in turn will publish the information on its public website.

The final rule imposed the following new requirements:

  1. § 1904.41(a)(1)—Establishments with 250 or more employees that are required to keep part 1904 records must electronically submit the required information from the three recordkeeping forms that they keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and Illness Incident Report)
  2. § 1904.41(a)(2)—Establishments with 20-249 employees that are classified in a designated industry listed in appendix A to subpart E of part 1904 (so-called high hazard industries) must electronically submit the required information from the OSHA Form 300A annually.
  3. The final rule requires other employers to electronically submit information from part 1904 recordkeeping forms to OSHA upon request.

It is important to note that the electronic reporting requirement is based on the size of an “establishment,” not the employer’s total number of employees company-wide. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. An employer may be comprised of one or more establishments, and the number of establishments may vary from year to year. An employer is required to maintain employee injury reports (and electronically submit them, if covered by the new requirements) for each of its covered establishments.

The electronic reporting requirement became effective on January 1, 2017, with a two-year phase in period. Employers were originally required to submit their 2016 OSHA Forms by July 1, 2017 and their 2017 OSHA Forms by July 1, 2018.  Beginning in 2019 and for every year thereafter, all annual OSHA Forms will be due by March 2 of the following year.

Earlier this year OSHA announced that it would postpone the 2016 submittal deadline from July 1st to December 1, 2017 to allow the Trump Administration additional time to further study these requirements. On November 22, 2017, OSHA announced that it will again extend the date by which employers with covered establishments must submit the data from the 2016 Form 300A to OSHA’s electronic database.  The new deadline is December 15, 2017, which OSHA explained is necessary to “allow affected employers additional time to become familiar with a new electronic reporting system launched on August 1, 2017.”

The OSHA Injury Tracking Application (ITA) website where employers will be required to make their electronic records submissions can be found here.

The electronic data submission is controversial because of its public nature, and many in industry have criticized the new requirement as part of the Obama Administration’s tactics of publicly shaming employers as a compliance technique.  OSHA has justified the new rule on its belief that the electronic data collection and public disclosure of employers’ workplace injuries is necessary to “identify and mitigate workplace hazards and thereby prevent worker injuries and illness,” and its view that “behavioral economics” through publication of the collected information will “nudge” employers to improve compliance efforts.

Recent comments by Secretary of Labor Alex Acosta suggest that the Trump Administration may be considering further tweaks to these requirements, or at least how the reported information may be published by the Agency.  During a hearing before the House Education and the Workforce Committee on November 15, Secretary Acosta indicated that OSHA is continuing to examine the rule.

“We are balancing the issues of privacy – because it was asking for some information that was very detailed and that identified individuals – with the needs [sic] to get information so that we can engage in appropriate and targeted enforcement.”

Given these developments, it does not appear that the Trump Administration will do away with the electronic submission requirement altogether, so affected employers should continue preparations for compliance with the electronic reporting requirements by the new December 15th deadline.  But given that some changes to alleviate employer concerns may be yet to come, affected employers may wish to consider delaying their 2016 electronic reporting as long as possible to be in position to take advantage of any late-breaking developments in the Agency’s application of this rule.  And it is also possible that OSHA could extend the deadline a third time to account for additional changes to the reporting requirements.