Employers Must Prepare OSHA Form 300A for Electronic Filing

Proposed changes to the electronic record-keeping rule are coming

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The Occupational Safety and Health Administration (OSHA) will require all covered employers to electronically submit OSHA Form 300A by July 1—including employers in states with their own plans that haven't adopted the federal electronic record-keeping rule.

This reflects a change in position by OSHA, which previously indicated that employers would only be required to submit the 300A forms online if the state plan had adopted the requirement, noted James Seegers, an attorney with BakerHostetler in Orlando.

Employers should prepare to submit their forms on schedule, but they may see some more changes soon, as OSHA has announced that it will issue a Notice of Proposed Rulemaking to reconsider, revise or remove certain provisions of the rule.

Agency Expects Compliance

OSHA allows states to develop their own workplace health and safety plans, as long as those plans are "at least as effective" as the federal program. But a few states haven't adopted OSHA's 2016 Improve Tracking of Workplace Injuries and Illnesses regulation, which requires employers to electronically submit certain records to the federal agency.

Initially, states were free to choose whether they wanted to adopt the rule, but federal OSHA recently said that this was an error and clarified that all affected employers must submit injury and illness data to the Injury Tracking Application (ITA) online portal, even if an employer is covered by a state plan that has not adopted its own equivalent rule.

Form 300A is a summary of workplace injuries and illnesses that many employers are required to post in the workplace from Feb. 1 until April 30 of each year. Under the electronic record-keeping rule, certain employers also had to submit their 2016 summaries to the ITA by December 2017 and will have to electronically submit their 2017 data by July 1. The agency said, however, that employers covered by state plans that have not adopted a state rule do not need to retroactively submit their 2016 data.

Beginning in 2019, the information will need to be submitted by March 2 each year.

[SHRM members-only how-to guide: How to Complete OSHA Form 300]

Employers should be aware that OSHA is enforcing this regulation, said Tressi Cordaro, an attorney with Jackson Lewis in the Washington, D.C., area. For any onsite inspection that is conducted by federal OSHA, the agency has instructed compliance officers to ask whether the establishment has submitted its 300A form electronically to OSHA and to request proof of such submission.  

Cordaro noted, however, that federal OSHA officials don't have enforcement authority over employers in state plans, so even though the agency is requiring all employers to comply, officers can't enforce the electronic-submission requirement against employers in state plans that have not adopted the rule. 

Opposition to Rule

The electronic record-keeping rule faced opposition from the business community, in part because some of the data submitted will be made available to the public. OSHA officials under President Barack Obama had said that "making injury information publicly available will 'nudge' employers to focus on safety." But opponents claim that public disclosure would unreasonably harm employers.

The business concern is that unions will use this information when trying to organize companies and that plaintiffs' lawyers will review it to identify potential class actions, noted Edwin Foulke Jr., an attorney with Fisher Phillips in Atlanta and Washington, D.C., and the former head of OSHA under President George W. Bush.

Changes Are Likely Coming

Covered establishments with 20-249 employees are required to electronically submit only Form 300A each year, but larger organizations were supposed to begin submitting data from Form 300 (the injury and illness log) and Form 301 (incident reports for each injury or illness).

However, OSHA announced that it will not be accepting Forms 300 and 301 information at this time. "Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data," the agency said.

Cordaro expects OSHA to propose a change for large employers so that they need to submit only Form 300A each year. A Notice of Proposed Rulemaking to revise the rule has been submitted to the Office of Management and Budget (OMB) for review. This is the last internal review before the proposed revisions would be made publicly available for comment, Cordaro said.

This is only a proposed change, Seegers noted. "There is no way to know exactly what changes will or will not be made to the current regulation."

Additionally, it is anticipated that OSHA will propose revisions to the anti-retaliation provisions of the regulation. The anti-retaliation provisions—which went into effect in December 2016—give OSHA broad discretion to cite employers for having policies or practices that could discourage employees from reporting workplace injuries and illnesses, Seegers explained. For example, the provisions place limitations on safety incentive programs and drug-testing policies.

"We expect OSHA to greatly narrow the breadth of this discretion," he said.

Be Prepared

"I would recommend that employers carefully review their 300 log each January before the 300A must be completed, certified and posted, and then ultimately electronically submitted," Cordaro said.

Foulke noted that there are only four company representatives who may certify the 300A summary:

  • An owner of the company.
  • An officer of the corporation.
  • The highest-ranking company official working at the site.
  • The immediate supervisor of the highest-ranking company official working at the site.

Businesses commonly make the mistake of having an HR or safety supervisor sign the form, he said, but they need to get at least the plant manager to sign it. The representative who signs it must know how numbers in the summary were obtained.

"Employers should take the time to make sure there are no discrepancies and that the numbers align on the 300A," Cordaro said. "There are some employers that may not have familiarized themselves with the Injury Tracking Application yet, and I would encourage employers covered by the regulation to make sure they have set up an account and know how to use the ITA."

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