The U.S. Occupational Safety and Health Administration (OSHA) issued a final rule that will require a broad range of employers to electronically submit workplace injury and illness data from their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) once a year. This requirement is in addition to existing requirements for certain employers to electronically submit data from their OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The new rule goes into effect on January 1, 2024, requiring the submission of Forms 300 and 301 data on March 2, 2024.

Key Takeaways

• Affected Employers: Establishments with 100 or more employees in industries designated “higher hazard” and listed in new Appendix B.
• Annual Submission of Forms 300 and 301 Data: Affected employers must submit Forms 300 and 301 data once a year starting on March 2, 2024, for calendar year 2023.
• Including Company Legal Name in Submissions: A company’s legal name must be included in its electronic submissions.
• Publicly Available Information: OSHA intends to make some of the data collected from these submissions publicly available in a searchable online database.

Background and New Requirements

OSHA’s new rule imposes two new requirements: (1) establishments with 100 or more employees in “higher hazard industries” will be required to submit data from their Forms 300 and 301 regarding the details of work-related illness and injuries on an annual basis; and (2) the establishments will be required to include their legal company name in their electronic submissions.

This new rule resembles the agency’s 2016 rule under the Obama Administration, which OSHA rescinded in part in 2019 under the Trump Administration. The 2016 rule required establishments with 250 or more employees to electronically submit data from their Forms 300A, 300, and 301 annually, and required establishments with 20 or more employees but fewer than 250 in designated industries to electronically submit data from their Form 300A. OSHA rescinded the requirement for establishments with 250 or more employees to electronically submit data from their Forms 300 and 301 based on concerns that electronic submission of the data “would subject sensitive worker information to a meaningful risk of public disclosure.”

OSHA’s new rule re-issues the requirement for certain establishments to submit data from their Forms 300 and 301 on an annual basis. The new rule differs from the 2016 rule in that the establishment-size threshold and the scope of the industries required to submit the information has changed. OSHA has determined that the prior bases for removing the Forms 300 and 301 data submission requirement “are no longer compelling.”

Under the new rule, establishments with 100 or more employees in certain designated industries—rather than all establishments with 250 or more employees in all industries required by Part 1904 to keep records, as in the 2016 rule—will now be required to also electronically submit data from their Forms 300 and 301 on an annual basis. A list of affected industries can be found in Appendix B to 29 C.F.R. Part 1904, Subpart E, once effective. View a PDF of this list here. In the preamble to the final rule, OSHA explains that its criteria for including the “higher hazard industries” in Appendix B was based on Total Case Rates (TCRs), Days Away Restricted or Transferred (DART) rates, and fatality rates. OSHA rejected some of the commenters’ suggestions for the agency to require all establishments with 100 or more employees (regardless of industry hazardousness) to submit data, but noted that if establishments’ Forms 300A data or other information indicates that injury and illness rates in industries that are not included on Appendix B are rising, OSHA may consider engaging in notice-and-comment rulemaking to add those industries to Appendix B.

OSHA retained its existing requirements for the electronic submission of information from Form 300A by establishments with 20-249 employees in certain designated industries (listed in Appendix A) and establishments with 250 or more employees in industries required by Part 1904 to routinely keep OSHA injury and illness records. OSHA revised Appendix A to update the list of designated industries from the 2012 version of the North American Industry Classification System (NAICS) to the 2017 version of NAICS. OSHA asserts that this revision will not affect which industries are required to provide data but rather simply reflect the updated 2017 NAICS codes.

To improve OSHA’s data quality, employers must now also include their company’s legal name as part of their annual submissions.

Publication of Forms 300 and 301 Data

OSHA intends to post some of the data collected from the submissions in a searchable online database after removing identifying information, thus making the information publicly available. In the preamble to the final rule, OSHA describes its intention to post all collected data fields on Form 300, except for employee names, and all collected data from Fields 10 through 18 on Form 301 (which would exclude employee identifying information). OSHA further describes its intention to use the collected data to identify individual establishments for enforcement inspection and compliance assistance outreach and to identify patterns and trends for developing potential future OSHA standards. OSHA also believes that publication of the data will allow employers, current and potential employees, employee representatives, customers, researchers, and the general public to more accurately assess and improve workplace safety and health and ultimately reduce occupational injuries and illnesses.

Implications

Injury and illness recordkeeping and reporting are key components of OSHA compliance. Employers should ensure the OSHA forms are accurately completed, and all required records are properly maintained, and consider developing strategies to minimize instances of recordable injuries or illnesses at the workplace.

Beveridge & Diamond’s Occupational Safety & Health practice group works alongside clients’ legal, EHS, and technical teams to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. For more information, please contact the authors.