On December 19, 2016, the Department of Labour’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labour, 675 F.3d 752 (D.C. Cir. 2012).
The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of certain workplace injuries and illnesses that are prescribed by the Secretary of Labour. Pursuant to this delegated authority, OSHA has issued regulations that require covered employers to record workplace injuries and illnesses on the OSHA 301 Incident Report form and on the OSHA 300 Log form, within seven days of learning of a recordable workplace injury or illness, to review the Log for accuracy at the end of each calendar year and to correct any deficiencies found during the annual review. A covered employer must prepare, certify and post annual summaries of the recordable workplace injuries and illnesses that occurred during the previous year by February 1 and keep them posted until April 30. OSHA regulations further require covered employers to maintain its Logs, Incident Report forms and annual summaries for five calendar years and to make this information available to its employees, OSHA, and the Bureau of Labour Statistics. OSHA may issue citations for violations of the Act but must do so within six months after “the occurrence of any violation.” 29 U.S.C. § 658(c). The new continuing obligation provides the basis for record-keeping violations to be timely years after a reportable incident under the rationale of the AKM case.
When this final rule becomes effective on January 18, 2017, covered employers will have a continuing obligation to create and maintain accurate records of recordable workplace injuries and illnesses and to update their records during the five-year retention period.
What You Need to Know About OSHA Reporting & Recordkeeping Updates?
OSHA is changing its policies on injury and illness reporting and recordkeeping. Read on to learn how the new updates will affect your facility and when you’ll have to comply.
Beginning in 2017, employers with more than 250 employees and those with 20 to 249 employees in specified high-risk industries must submit injury and illness logs annually to the Occupational Safety and Health Administration (OSHA). The information that OSHA obtains from these documents helps them to evaluate the overall safety of workplaces, establish trends and target their outreach efforts to industry sectors with higher than average incident rates.
OSHA will provide a secure website for employers to submit their data. The website was scheduled to go live in February 2017 but has been delayed and is expected to be live on August 1, 2017.
After the new reporting system is operational, affected industries will have until December 1, 2017 to enter their facility’s 300A logs. Beginning in 2019, however, OSHA requires all of the past year’s data to be submitted by March 2.
|Date||Affected Industries||Forms to Submit|
|July 1, 2017||Establishments with 250 or more employees and establishments with 20 – 249 employees in certain high-risk industries||300A|
|July 1, 2018||Establishments with 250 or more employees||300, 300A and 301|
|July 1, 2018||Establishments with 20 – 249 employees in certain high-risk industries||300A|
|March 2, 2019 and beyond||Establishments with 250 or more employees||300, 300A and 301|
|March 2, 2019 and beyond||Establishments with 20 – 249 employees in certain high-risk industries||300A|
Any injury that is work-related [29 CFR 1904.5] and is a new case [29 CFR 1904.6] must be reported if it meets any of the following criteria:
- Days away from work
- Restricted work or transfer to another job
- Medical treatment beyond first aid
- Loss of consciousness
- Work-related diagnosed case of cancer or a chronic irreversible disease
- Fractured or cracked bones or teeth
- Punctured eardrums
- Needlestick exposures and sharps injuries
- Occupational hearing loss
- Occupational exposure to tuberculosis
OSHA Form 300A: The Summary of Work-Related Injuries and Illnesses
From February 1 to April 30 of each year, a summary of all recordable injuries and illnesses (the OSHA Form 300A) must be posted in the workplace. It must be posted in places where other notices are typically posted and it cannot be altered, defaced or covered by other announcements or materials [29 CFR 1904.32(b)(5)]. You must also have a means of verifying that the information was posted in the workplace, such as a notice in employee bulletins or a dated photograph.
All facilities subject to electronic recordkeeping rules must submit this form annually beginning in January 2017.
OSHA Form 300: The Log of Work-Related Injuries and Illnesses
The OSHA 300 log is used to keep track of all recordable workplace injuries and illnesses throughout the year. It needs to be kept current and must be made available to OSHA compliance officers within four hours of a request. OSHA 300 logs must be electronically submitted to OSHA annually beginning in 2018 if the facility has 250 or more employees, 20 to 249 employees in designated industry sectors or if OSHA specifically requests it. Facilities must also keep this record onsite for five years.
The log includes information about who was injured, the type of injury or illness and what happened as a result of it: death, days away from work or duty restrictions, for example. OSHA clarifies how days away from work are to be recorded in 29 CFR 1904.7(b)(3).
OSHA Form 301: The Injury and Illness Incident Report
For each injury or illness reported on the 300 Log, a Form 301 must be completed [29 CFR 1904.29(b)(2)]. This form must be completed within seven days following an incident and must be kept for five years.
The 301 form provides details about the injury or illness that has occurred. This helps the employer recall facts about an event if they are needed at a later time and provides OSHA with specific information about how an injury or illness happened. Like the Form 300, beginning in 2018 workplaces with 250 or more employees will need to submit this log to OSHA annually.
If workplace injuries or illnesses do occur, OSHA gives employees the right to report work-related injuries and illnesses and to do so without fear of retaliation. Employers must have a reasonable process for reporting injuries and illnesses and that process must be communicated with employees.
No employee should expect to be injured. That’s why OSHA takes recordkeeping seriously and requires employers to identify workplace hazards and put processes, procedures and safeguards in place to prevent injuries and illnesses. OSHA also requires employers to train their employees about hazards they may face and how to prevent them.
Requiring employers to submit their injury and illness records provides OSHA with valuable information that can be used to focus their efforts on rulemaking, guidance documents and outreach programs that help prevent future workplace incidents.