New OSHA Rule Expands Scope of Workplace Injury and Illness Records Required to be Electronically Submitted

On July 21, 2023, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a final rulemaking expanding the scope of workplace injury and illness information that certain employers are required to electronically submit to the agency annually. The rule resuscitates (with slight modification) a prior OSHA regulation from the Obama administration which the Trump administration had withdrawn.

Under the new rule, OSHA will require establishments with 100 or more employees in certain high-hazard industries (identified based on an establishment’s North American Industry Classification Systems code, or NAICS code) to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. OSHA defines an “establishment” as “a single physical location where business is conducted or where services or industrial operations are performed.” Further, “[f]or activities where employees do not work at a single physical location … the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.” The size of an establishment is determined based on how many employees the establishment had during the previous calendar year.

For employers subject to “federal OSHA,” the new rule takes effect on January 1, 2024. Employers must submit the required information covering calendar year 2023 by March 2, 2024. Employers in states with their own OSH programs should be mindful that their compliance obligations may differ.

What is the current rule on workplace recordkeeping?

Under the current rule, subject to certain exemptions based on the type of work performed at their particular establishments, companies with 10 or more employees are required to keep records of work-related injury and illness information using OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Annual Summary of Work-Related Injuries and Illnesses), 301 (Injury and Illness Incident Report), or their equivalent. The existing OSHA recordkeeping regulations also require:

• establishments with 250 or more employees that are already required to routinely keep OSHA injury and illness records to also electronically submit information from the Form 300A summary to OSHA once a year;
• establishments with 20-249 employees in certain designated industries (those listed on Appendix A of 29 CFR part 1904 subpart E) to also electronically submit information from their Form 300A summary to OSHA once a year.

What does the new rule do?

The new rule updates the NAICS codes listed in Appendix A to subpart E to reflect a more current version of those codes, and expands electronic submission obligations for establishments listed in a new Appendix B to subpart E. The NAICS codes listed in Appendix B are a subset of the NAICS codes listed in Appendix A. For those Appendix B establishments, establishments with 100 or more employees are now required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. The industries covered by the NAICS codes in new Appendix B were chosen based on one of the three criteria of industry hazardousness: (1) a 3-year-average rate of total recordable cases (Total Case Rate, or TCR) in the U.S. Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses (BLS SOII) for 2017, 2018, and 2019, of at least 3.5 cases per 100 fulltime-equivalent employees; (2) a 3-year-average Days Away, Restricted, or Transferred (DART) rate in the BLS SOII for 2017, 2018, and 2019 of at least 2.25 cases per 100 full-time-equivalent employees; or (3) a fatality rate in the BLS Census of Fatal Occupational Injuries (CFOI) of at least 5.7 deaths per 100,000 full-time-equivalent employees.

OSHA requires employers to include their company name when making electronic submissions. The agency will also post some of the collected injury and illness information online after removing data that could reasonably be expected to identify individuals directly. Recognizing the privacy concerns surrounding this rule, OSHA directs employers to exclude from their submissions certain information that is otherwise captured on Forms 300 and 301. For Form 300, employers should exclude the employee name (column B). For Form 301, employers should exclude the employee name (field 1), employee address (field 2), the name of treating physician or other health care professional (field 6), and the facility name and address if treatment was given away from the worksite (field 7). OSHA states in the preamble to the rule that the data from the Form 301 fields for age (calculated from date of birth in field 3), date hired (field 4), gender (field 5), whether the employee was treated in an emergency room (field 8), and whether the employee was hospitalized overnight (field 9) will be collected but not published.  

What should employers do to prepare for and comply with the new rule?

Employers should identify whether this new rule will change their OSHA record-keeping and electronic submission obligations:

• For establishments with 250 or more employees that are routinely required to keep workplace injury and illness records, there is no change to the annual Form 300A submission requirements.
• For establishments with 20-249 employees in the high-hazard industries designated in Appendix A of subpart E, there is also no change to the annual Form 300A submission requirements. As a matter of business hygiene, however, these employers should review the revised Appendix A list to verify whether their establishments are covered (OSHA states that the revision does not substantively affect covered establishments).
• For establishments with 100 or more employees who are required to submit Form 300A information, they should review the new Appendix B of subpart E: if an establishment is covered by a NAICS code listed in Appendix B, it will be required beginning in 2024 to electronically submit the required information from Forms 300 and 301 (in addition to their Form 300A obligations).

As a reminder, employers should note that this is a “federal OSHA” rule and does not on its own apply to employers in states that administer their own OSH programs. For employers in those “state-program” states, the specifics and timing of any new recordkeeping and submission requirements may vary.

Note also that this rulemaking only applies to record-keeping and the electronic submissions of those records. All employers covered by the OSH Act, including establishments exempt from routine injury and illness record-keeping, are still required to report work-related fatalities and the other types of work-related injuries that OSHA requires to be reported.