The Occupational Safety and Health Administration has announced a revision of its injury and illness electronic filing regulation, 29 CFR § 1904.41. Scheduled to be published in the Federal Register tomorrow and to go into effect on January 1, the new regulation will require many employers to submit even more of their injury and illness data electronically on the OSHA website.
By March 2, 2024, the following workplaces will be required to electronically file injury and illness data:
- Establishments (individual work sites) with 100 or more employees in certain designated North America Industrial Classification System codes will be required to file their OSHA 300 Logs, 301 forms for each case recorded on the 300 Log, and the 300A Annual Summary form. This is a new list of High-Hazard Industries. (See table beginning on page 268 at the link.)
- Establishments with between 20 and 249 employees in certain designated NAICS codes must continue to file their OSHA 300A Annual Summary forms.
- Establishments with 250 or more employees, regardless of whether they are within the designated NAICS codes, must continue to file their OSHA 300A Annual Summary forms.
In determining whether you are covered by the electronic filing requirements, the focus is on the number of employees at any time during the previous calendar year for a specific worksite or establishment, not on the total head count of a company.
The greatest expansion under the new regulation is the obligation to provide OSHA 300 Logs and 301 forms for each case recorded on the Log. Although you have to submit the OSHA 300 Log, you can delete the names of the injured and ill employees from the OSHA 300 Log, as well as the employee name and address, the name of the physician or other health care professional who rendered treatment, and the name and address of the PHCP from the 301 form.
OSHA will eventually publish this data on its website, providing the public with, among other information, establishment-specific data. For example, although employee names will not be disclosed, any member of the public, including your competitors and any union, will have access to all of the information on your OSHA 300 Logs and 301 forms.
This is obviously a significant change, and a cynic might suspect that some employers will under-report their injuries and illnesses because of the new public availability of this information. But up to this point, if an employee wanted to see an OSHA 300 Log, the employee had to ask the employer for a copy. With the new online availability of these records, employees, former employees, and their representatives will be able to review your recordkeeping decisions by directly accessing the OSHA website without involving you. This by itself may tend to discourage under-reporting. With this increased attention on OSHA recordkeeping, it seems likely that OSHA may establish a Special Emphasis Program on Injury and Illness recordkeeping to ensure that the new requirements do not serve as a disincentive to accurate recordkeeping.
