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Employer alert: OSHA has a new Injury & Illness Reporting and Recordkeeping rule and Warehousing NEP

Injury & Illness Reporting and Recordkeeping rule

More employers will be required to submit workplace injury and illness information under a final rule released by the Occupational Safety and Health Administration (OSHA) on July 17. The new rule updates the list of employers in “high-hazard” industries and creates more onerous obligations for certain employers. It will take effect on Jan. 1, 2024, and March 2, 2024 is the first submission deadline.

While many aspects of the rule are the same as the rule proposed in March 2022, which was strongly opposed by business groups, it includes two significant changes that go beyond what was originally proposed. Unfortunately for large employers in non-hazardous industries, it did not remove the annual requirement for establishments with at least 250 employees to submit their Form 300A-Summary of Work-Related Injuries and Illnesses. It also added six industries to the new Appendix B, the list of highest-risk industries that must electronically submit information from their OSHA Forms 300 and 301 as well as 300A – logging, furniture-related product manufacturing, durable goods wholesalers, taxi and limousine services, hunting and trapping, and other support activities for transportation.

Under the new rule, the three categories of employers that must submit information annually are:

• New: Worksites with 100 or more employees in the highest hazard industries (new Appendix B) must electronically submit information from the 300A Annual Summary, AND Form 300 Log, and Form 301 Incident Report. Appendix B consists of industries that are listed in Appendix A and had a high average total case rate of injuries or illnesses (TCR), or high DART rate, or high fatality rate. OSHA estimates this will affect over 52,000 establishments.

• Worksites with 20 to 249 employees incertain high-risk industries (Appendix A) will continue to be required to submit information from their 300A form. (Note: Appendix A has been modified from the past years)

• Worksites with 250 or more employees not in designated industries will continue to be required to submit information from the 300A form unless they fall under an exemption.

The size threshold is based on one physical work location (establishment), not the size of the company. Employment at an establishment is based on peak employment during the previous calendar year. Each worker counts as one employee, including full-time, part-time, seasonal, and temporary workers, with some minor exceptions as specified in the regulations.

Other important changes:

• The new rule requires establishments to include their legal company name when making electronic submissions.
• The agency intends to post the collected establishment-specific, case-specific injury and illness information online in its searchable online database. It notes it will take several steps to minimize the possibility of releasing information that could identify individuals directly, such as not collecting certain information including employee names or addresses, names of healthcare professionals, or names and addresses of third-party treatment facilities, and using software to remove private employee information.
• The new rule updates the classification system used to determine the list of industries covered by the electronic records submission requirement in Appendix A and the new Appendix B. It replaces “old” (2012) NAICS codes with newer ones (2017) as well as other modifications.

Implications for employers

The implications for employers are significant. Generally, OSHA has only gained access to Forms 300 and 301 as part of an onsite inspection or a specific written request, but now employers in the highest-risk industries with 100 or more employees at one establishment must electronically submit certain information on these forms. This information will increase the agency’s ability to target employers in “programmed inspections,” such as the new National Emphasis Program (NEP) relating to warehouses and distribution centers. Randy Boss, Certified Risk Manager at Ottawa Kent in Jenison, MI and Master WorkComp Advisor (MWCA), recently posted on LinkedIn, “I’ve been warning this rule was coming…this will make it much easier to use Artificial Intelligence (AI) to target high injury companies for enforcement.”

It will also enable OSHA to predetermine whether the establishment should fall under the instance-by-instance citation policy based on its injury and illness history. Some experts worry that employees who have been injured or who have been ill will be targeted for interviews during inspections.

The public disclosure of the data is of particular concern. There are no provisions for revising or updating the public information, propriety information may be revealed, data may be misinterpreted or misrepresented by the media or competitors or misconstrued by the public, and employee privacy may be violated. The effectiveness of the steps to protect employee privacy is unknown.

Noncompliance can result in a citation, which could possibly be combined with the instance-by-instance citation policy, leading to exorbitant penalties.

Actions employers should take now

1. Determine if you are covered and under what category

Carefully review the updated Appendix A and new Appendix B. Establishments in designated high-hazard industries from Appendix B should develop a plan for collecting and electronically submitting data from Forms 300 and 301 in addition to Form 300A.

2. Review recordkeeping procedures

Evaluate each injury or illness to ensure that the OSHA standards require recording. Self-audit how injuries are recorded to minimize unnecessary details and be cognizant that the information will be posted publicly. Understand what information does NOT have to be included on the forms. Review procedures to ensure they are reasonable and do not discourage injury and illness reporting.

3. Develop a procedure to monitor if an establishment reaches the 100 or 250 employee thresholds in the regulation at any time during the year and prepare for meeting the rule requirements.
4. Check applicable state laws

Within six months from July 17, State Plan states will have to adopt requirements that are substantially identical to the requirements in this final rule. Reporting requirements may differ.