OSHA Proposed Rule Would Remove One Electronic Record-Keeping Requirement, Add Others

​The Occupational Safety and Health Administration (OSHA) announced a proposed rule March 28 that would remove one electronic reporting requirement while adding others for high-hazard industries.

The proposed rule would:

• Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
• Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their forms 300, 301 and 300A to OSHA once a year.
• Update the classification system used to determine the industries covered by the electronic submission requirement.
• Require establishments to include their company name when making electronic submissions to OSHA.

Establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their Form 300A annual summary to OSHA yearly.

Current OSHA Record-Keeping Requirements

"Recordability of any injury on your 300 log is a serious matter," said Micah Dickie, an attorney with Fisher Phillips in Atlanta.

While the 300 log doesn't currently have to be filed with OSHA, he noted, employers that have establishments with 250 or more employees and certain other smaller employers must electronically submit the 300A summary to OSHA in early March each year. 

The 300 log classifies work-related injuries and illnesses and records the extent and severity of each case. Form 301, the injury and illness incident report, provides additional information about each case reported in the 300 log.

Form 300A is the annual summary of all recordable work-related injuries and illnesses that occurred at an establishment, including the total number of cases, the total number of days employees spent away from work or on restriction, and specific injury and illness types from the OSHA 300 log. This 300A annual summary must be posted in a conspicuous place at each establishment from Feb. 1 to April 30.

OSHA Comments on Proposed Rule

"With the information obtained through this proposed rule, employers, employees, employee representatives, the government and researchers would be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses," OSHA said.

Employees experience approximately 3 million serious injuries and illnesses at work, according to the agency, and this number is widely recognized to be an undercount of the actual number of occupational injuries and illnesses that occur annually. "OSHA currently has limited information about the injury [and] illness risks facing workers in specific establishments, and the proposed rule would increase the agency's ability to focus resources on those workplaces where workers are at high risk," the agency stated.

"The data collection would also enable the agency to focus its emphasis program inspections on establishments with specific hazards, such as trench and excavation collapses," OSHA noted.

The agency added that "The availability of establishment-specific injury and illness data would also be of great use to county, state and territorial departments of health and other public institutions charged with injury and illness surveillance."

FOIA Disputes

Since 2020, the U.S. Department of Labor has received several adverse decisions regarding the release of electronically submitted 300A data under the Freedom of Information Act (FOIA). In each of the cases, OSHA argued that electronically submitted 300A injury and illness data was covered under the confidentiality exemption in FOIA Exemption 4.

Two courts, one in the U.S. District Court for the Northern District of California and another in the U.S. District Court for the District of Columbia, disagreed with OSHA's position.

In addition, on July 6, 2020, the department received an adverse ruling from a magistrate judge in the Northern District of California in a FOIA case involving a company's fulfillment centers. In that case, the plaintiffs sought the release of individual 300A forms, which consisted of summaries of the company's work-related injuries and illnesses and which were provided to OSHA compliance officers during specific OSHA inspections of fulfillment centers in Ohio and Illinois.

In holding that FOIA Exemption 4 was inapplicable, the courts rejected OSHA's position that electronically submitted 300A injury and illness data is covered under the confidentiality exemption in FOIA Exemption 4. The decisions noted that Form 300A is posted in the workplace for three months and that there is no expectation that the employer must keep this data confidential or private. As a result, OSHA provided the requested 300A data to the plaintiffs and initiated a policy to post collected 300A data on its public website.

Based on its experience, OSHA believes that the record-keeping information from forms 300, 301 and 300A that would be required to be submitted under the proposed rule will likely be the subject of multiple FOIA requests in the future. As such, the agency plans to place the record-keeping information that will be posted on the public OSHA website in its electronic FOIA library. Since agencies may withhold a record—or a portion of such a record—if it falls within a FOIA exemption, just as they can do in response to FOIA requests, OSHA says it will place the published information in its FOIA library consistent with all FOIA exemptions.

In its proposed rule, OSHA sought comment on whether it is appropriate for the agency to remove the requirement for establishments with 250 or more employees to submit Form 300A if the businesses are not in high-hazard industries.