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The Proposed OSHA Rule
In March 2022, OSHA, the Occupational Safety and Health Administration, published a proposed rule, “Improve Tracking of Workplace Injuries and Illnesses,” that changes some of the requirements for the electronic reporting of workplace injuries and illnesses for some employers. The proposed rule would also make such data public. Specifically, OSHA’s intent is to make the data from employers’ annual electronic submissions publicly available on a website after scrubbing individually identifying data, such as the names of the people experiencing a workplace injury or illness and their contact information. Company names, however, would be public.
OSHA Injury Reporting Requirements Prior to the Rule Change
Prior to the proposed rule change, employers were already required to report injuries and illnesses using Forms 300, 300A, and 301. OSHA injury reporting is done using OSHA Form 300, which is a yearly log of Injuries and Illnesses, where all reportable workplace injuries and illnesses are recorded including:
- Where and when each injury or illness occurred
- The nature of the case (the employer checks one of six boxes: injury, skin disorder, respiratory condition, poisoning, hearing loss, or all other illnesses)
- The name and position of the affected employee
- The number of work days missed or days on restricted or light duty
Form 300 must be submitted to OSHA annually. For every entry in the log, the employer also must complete OSHA Form 301, “Injury and Illness Incident Report,” within seven calendar days of the employer being informed of an injury or illness.
Form 300-A, “Summary of Work-Related Injuries and Illnesses,” must be completed, certified by a company executive, and posted in the workplace from February 1 to April 30.
Proposed Changes to Injury/Illness Reporting Rules
Prior to any rule change, only employees in certain industries, with a certain number of employees, were required to file Form 300 with OSHA electronically. Failure to comply with the current requirements can result in a fine of about $14,000 per violation. For repeat offenders, the fine soars to more than $145,000 per violation.
The proposed rule mandated electronic submission of forms 300 and 301 for a wider range of employers with fewer employees. OSHA believed that requiring more employers to file electronically would:
- Enable OSHA to target its compliance assistance and enforcement efforts at the workplaces presenting the greatest risk from specific hazards
- Improve the ability of employers to compare their own safety and health performance relative to specific hazards to the injury and illness data reported by similar businesses in their industry
- Facilitate data-driven decision-making
- Supporting better research on workplace safety and health
Under the proposed rule, electronic reporting of information from an employer’s Form 300A would continue to be done through the Injury Tracking Application (ITA) currently in use.
Pushback Against the Proposed Rule
Employers objecting to OSHA injury and illness data being made public were concerned that it could lead to reputational damage to companies with high injury and illness rates. Another concern was that making such data public could increase union activity in those workplaces.
Finally, there were concerns about the privacy of employees’ healthcare information. Under the existing OSHA recordkeeping and reporting rules, certain “privacy cases” had to be handled confidentially. These include cases involving:
- Injury or illness affecting an intimate body part or the reproductive system
- Sexual assault
- Mental illness
- HIV infection, hepatitis, or tuberculosis
- Needlestick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material
- Other illnesses will not be recorded if the employee voluntarily requests that his or her name not be entered on the log
In privacy cases, the worker’s name is not listed on the OSHA forms. Instead, “Privacy Case” is entered in that field.
The Final Rule
After considering the comments received on the proposed rule, OSHA developed its final rule, amending its recordkeeping regulations. Companies with 250 or more employees that are required to keep injury and illness records are now only required to submit information from OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” electronically. They are not required to submit data from OSHA Form 300 (the log) or Form 301 (the incident report) electronically. However, the final rule does not change the requirement to maintain Forms 300, 300A, and 301 on file for five years.
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