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Jun 21, 2022

It’s sometimes forgotten that one of the key responsibilities of employers is to provide a safe working environment – one where staff can feel confident to come to work, and leave again without injury.

The good news, is that – on paper at least – employer-reported workplace injuries appear to have fallen. US Bureau of Labor statistics shows private sector employers reported 2.7 million non-fatal workplace injuries and illnesses in 2020, down from 2.8 million in 2019, a decrease of 5.7 percent. Of course, much of this could be attributed to Covid-19 and more people staying at home. Without data, of course, improvements will not follow, and in the last few weeks The Occupational Safety and Health Administration (OSHA), has put forward proposals to make employers’ injury and illness data public. The idea is that by having their data available for all to see and scrutinize, employers will be challenged to make the workplaces safer.

So what exactly are employers’ new responsibilities? TLNT asked Drew Brought, a partner at Spencer Fane LLP in the firm’s Kansas City, Missouri office to explain them:

Q: What’s the big change?

A: There are two separate OSHA record keeping and reporting efforts that employers need to be aware of. Recently, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting. Both have a stated goal of increasing transparency and preventing workplace injuries and illness.

Q: What’s the detail of the first change?

A: Employers who fail to electronically report their annual Form 300A data in OSHA’s Injury Tracking Application (if required to do so), will be subject to a new OSHA enforcement program. According to OSHA’s enforcement memo published April 4, the agency will begin weekly auditing to evaluate open inspections and compare the data to determine if the employer appropriately submitted an annual report. OSHA notes that it will bring enforcement cases up through September 2, 2022, for employers who failed to electronically report their Form 300A by March 2, 2022.

Q: What about making workplace injuries and illnesses public?

A: As published in the Federal Register on March 30, 2022, 87 Fed. Reg. 18528, OSHA is moving forward with rulemaking that will require employer data to be made publicly available on workplace injuries and illnesses in a searchable online database. As explained by the agency: “The expanded public access to establishment-specific, case specific injury and illness data would allow employers, employees, potential employees, employee representatives, customers, potential customers, researchers, and the general public to make informed decisions about the workplace safety and health at a given establishment, and this accessibility will ultimately result in the reduction of occupational injuries and illnesses.” While this data is already subject to Freedom of Information requests, OSHA’s intent is to make the data available in a searchable online database. This presents a significant transformation in how the general public, competitors, and employees can access the data.

Q: What do employers most need to know about this?

A: While some employers with 250 or more employees may now be exempt from certain reporting requirements, the proposed rule increases the burden on other employers with more than 100 employees. According to OSHA, “[T]he proposed rule would eliminate the requirement for all establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A to OSHA. Instead, establishments with 100 or more employees in certain designated industries would be required to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. OSHA also proposes to update the industry classification system used for the proposed list of designated industries.”

Q: Can you summarize the key takeaways?

A: There’s a number of key messages employers should take away from this. These are:

  • OSHA has initiated a new enforcement program for employers and businesses classified in certain industries with historically high rates of occupational injuries and illnesses that failed to electronically submit their annual Form 300A data.
  • OSHA issued a Proposed Rule that will require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year.
  • In the Proposed Rule, OSHA also intends to begin making employers’ workplace injuries and illnesses publicly available in a searchable online database.