Reminder: Covered Employers Must Post OSHA Injury and Illness Data

​Employers that are covered by the Occupational Safety and Health Administration's (OSHA's) record-keeping rule must post a summary of 2021 work-related injuries and illnesses in a noticeable place from Feb. 1 to April 30. Here are some last-minute compliance tips for employers to review.

Required Posting

Many employers with more than 10 employees—except for those in certain low-risk industries—must keep a record of serious work-related injuries and illnesses. Minor injuries that are treated only by first aid do not need to be recorded.

Employers must complete an incident report (Form 301) for each injury or illness and log work-related incidents on OSHA Form 300. Form 300A is a summary of the information in the log that must be posted in the worksite.

"This information helps employers, workers and OSHA evaluate the safety of a workplace, understand industry hazards, and implement worker protections to reduce and eliminate hazards," according to OSHA's website.

Employers should note that they are required to keep a separate Form 300 log for each "establishment," which is defined as "a single physical location where business is conducted or where services or industrial operations are performed."

If employees don't work at a single physical location, then the establishment is the location from which the employees are supervised or that serves as their base.

"Just because an employer had no recordable injuries or illnesses does not mean the employer is automatically exempt from posting Form 300A," said Collin Warren, an attorney with Fisher Phillips in Houston. He noted that there are limited exceptions based on company size and for low-risk industries.

"Make sure the document is posted in the correct place," he added. The form should be displayed in a common area where notices are typically posted, and the summary should be made available for workers who do not report to a fixed location.

Before the OSHA Form 300A is posted in the worksite, a company executive must review it and certify that "he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete," according to OSHA.

A common mistake seen on 300A forms is that companies forget to have them signed, observed John Martin, an attorney with Ogletree Deakins in Washington, D.C.

There are only four company representatives who are allowed to certify the 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.

Electronic Filing

Certain establishments must also electronically submit Form 300A to OSHA by March 2. "Electronic filing of the 2021 OSHA Form 300A, a yearly summary of injury and illness data, is only required by certain establishments," explained Kristina Brooks, an attorney with Jackson Lewis in Albuquerque, N.M. These establishments include those with 250 or more employees that are currently required to keep OSHA injury and illness records and those with 20 to 249 employees that are classified in certain industries.

Brooks offered the following additional compliance tips to covered employers:

• If an establishment is permanently closed, it is not required to submit the injury and illness summary from the previous year.
• Even if an establishment had no recordable injuries and illnesses, it is still required to report Form 300A data.
• In determining the size of the establishment, remember that each worker employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal and temporary workers.
• An establishment must account for the recordable injuries and illnesses of other employees supervised on a day-to-day basis.

"Employers should thoroughly review all forms to check for accuracy and completeness," Brooks said. "If in doubt, ask questions."

COVID-19 Considerations

At this time, OSHA does not require employers to record worker side effects from COVID-19 vaccinations, but employers may need to track other COVID-19-related illnesses.

"While not required for the common cold and flu, employers are responsible for recording employees' work-related, confirmed cases of COVID-19 that result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness," Brooks said. OSHA uses guidelines from the  Centers for Disease Control and Prevention to define a "confirmed case" of COVID-19.

OSHA requires employers to make reasonable efforts to determine whether a particular case of COVID-19 illness is work-related, even though doing so is difficult in many instances, Brooks noted.

During an inspection, she said, OSHA compliance officers will consider the following:

• The reasonableness of an employer's investigation into whether the COVID-19 case was work related.
• The evidence available to the employer.
• The evidence that COVID-19 was contracted at work. 

"If an employer determines that the COVID-19 illness is not work-related, the employer is not required to record the illness," Brooks said.