Beginning Jan. 1, covered employers in high-hazard industries will be required to electronically submit injury and illness data to the Occupational Safety and Health Administration (OSHA) on an annual basis. Under 29 CFR Part 1904, covered establishments with 100 or more employees must submit forms 300 and 301 in addition to form 300-A to OSHA using an online portal by March 2, 2024.

Required information includes:

• The company’s name
• The date, physical location and severity of an injury or illness
• Information about the affected worker
• Details about how the injury or illness occurred

Establishments with 20 to 249 employees in certain industries and all establishments with 250 or more employees that are required to record injury and illness records on Form 300A will continue to electronically submit information to OSHA every year. The 300 form is the Log of Work-Related Injuries and Illnesses, the 301 form is the Injury and Illness Incident Report, and the 300-A form is the Summary of Work-Related Injuries and Illnesses.

The new electronic recordkeeping regulation is actually not new. It was first introduced during the Obama administration and then rolled back by the Trump administration. OSHA’s regulatory agents typically check logs and reports during onsite inspections or in response to a specific written request. Now the agency will be systematically reviewing and analyzing data that is electronically submitted data from employers who were not previously required to do so.

High-hazard establishments are listed by NAICS code in Appendix B, Subpart F of the final rule, Improve Tracking of Workplace Injuries and Illnesses, which was published in the Federal Register. Criteria used to select covered employers include total recordable cases; days away, restricted or transferred (DART) rates; and fatalities. (Industries that are required to submit form 300-A are listed by NAICS code in Appendix A.)

Electronic Recordkeeping Benefits

OSHA officials say expanded electronic data collection will make site- and case-specific data at identified workplaces more transparent and available to employees, job applicants, customers and other interested parties so they can make informed decisions based on the findings. Submitters may be found by company name using a searchable online database.

OSHA plans to use the data to identify establishments with specific exposure hazards and interact directly with them through enforcement and/or outreach activities to reduce exposure risk, prevent injuries, and improve worker safety and health. OSHA believes electronic recordkeeping will ultimately help prevent occupational injuries and illnesses.

OSHA estimates the rule will cost $7.7 million per year to implement, including $7.1 million per year in the private sector, with average costs of $136 per year for affected establishments annualized over 10 years. The agency projects that related benefits, while unquantified, will significantly exceed costs.

Submitting Data

Forms must be electronically submitted through OSHA’s Injury Tracking Application (ITA) in one of three ways:

• Webform on the ITA
• Submission of a comma-separated values (CSV) file to the ITA
• Use of an application programming interface (API) feed

The ITA will begin accepting 2023 injury and illness data on Jan. 2. Since the ITA login procedure was recently transitioned to Login.gov, all current and new account holders must connect their ITA account to a Login.gov account with the same email address to access the application. OSHA has stated it will not collect employee names or addresses, names of health care professionals, or names and addresses of offsite facilities where medical treatment was provided.

OSHA said it intends to post some of the data from the annual electronic submissions on a public website after identifying and removing information that could reasonably be expected to identify individuals directly, such as their names and contact information.

Legal Implications

Digital recordkeeping and disclosure is expected to face court challenges, but for the time being, the law will go into effect in less than a month.

According to employment law attorneys with Morgan Lewis, concerns for employers include less flexibility with regard to allowed revisions of injury and illness data when new information becomes available after initial data has been released in the public domain. In addition, there is a risk that records could contain proprietary information or mistakenly retain personally identifiable health information.

In public comments written in response to the agency’s proposed rule, the U.S. Chamber of Commerce, said data could be used by competitors to gain insights on employers’ “efficiencies and productivity rates” or to mischaracterize an employer’s safety record.

Compliance costs are also expected to be a burden for some companies. In public comments, the Motor & Equipment Manufacturers Association suggested that some covered establishments would need to spend significant time and resources to ensure that personally identifiable information is stripped from data submitted to OSHA. The maximum OSHA penalty for serious or other-than serious posting requirements or failure to abate a hazard is $15,625 per violation.

Contact WorkCare to learn more about the ways we help employers comply with applicable OSHA regulations and keep employees healthy, safe and on the job: info@workcare.com.