OSHA’s New Record Keeping Rule is not Business as Usual: Six Reasons to Consult with Your Advisor Now

Although compliance with OSHA’s injury and illness recordkeeping and reporting rule always has been challenging, it’s never more critical to get it right. The sweeping changes made to the rule in July 2023 significantly increases the number of establishments affected, dramatically increases employers’ reporting requirements, and gives OSHA unprecedented access to workplace data, fueling employers’ exposure to enforcement measures and public shaming.

Effective January 1, 2024, the new rule applies to the reporting of 2023 data. Covered employers should be prepared to post the 300A summaries from February 1 through April 30, 2024, and be prepared to submit electronically the 300, 300A, and/or 301 incident reports for the 2023 calendar year data by March 2, 2024. Employers should be taking steps now to understand the rule, identify recordkeeping issues, and ensure compliance.

In our August 2023 WorkComp Advisory, we summarized the rule. To recap, here are the major changes:

• Employers in “high hazard industries” industries (Appendix B) with 100 or more employees at one establishment must now electronically submit certain information on the OSHA 300 Log and 301 Incident Report. In the past, these establishments only submitted the OSHA 300A Summary, which is still required. The list of designated industries was expanded to include logging, furniture-related product manufacturing, durable goods wholesalers, taxi and limousine services, hunting and trapping, and other support activities for transportation and includes more than 100 North American Industrial Classification (NAICS) categories.
• Establishments will be required to include the company’s legal name when submitting electronically and OSHA intends to make the data publicly available in a searchable online database.

Establishments with 20 to 249 employees in certain designated industries (Appendix A) and establishments with 250 or more employees in non-designated industries will continue to be required to submit information from the 300A form.

Here are six reasons why employers should be taking steps now to understand the rule, identify recordkeeping issues, and ensure compliance:

1. The number of covered establishments and reporting requirements have dramatically increased lowering the threshold number of employees from 250 to 100 and expanding the list of covered high-hazard industries means thousands more establishments will be covered. Many employers now will have a recurring legal obligation to provide Form 300, Log of Injuries and Illnesses, and Form 301, Injury and Illness Incident Report, as well as the 300A Summary. Submission of the 300 Log and 301 form means OSHA will have in-depth details about the injuries and illnesses employees are experiencing, such as injury type, injury description, incident date, where an injury occurred, what the employee was doing, and other data that will be available for public viewing. It’s critical to review how injuries are recorded to eliminate unnecessary narratives and information and be cognizant it will become public information.

The new rule also updates the classification system, replacing the 2012 NAICS codes with newer (2017) ones. The code not only determines what forms must be submitted but also determines if an establishment has high injury rates and should be targeted for an inspection based on a comparison with its peers. To complicate matters, some four-digit NAICS codes show up on both appendices and many four-digit NAICS codes which would be included in the two-digit parent code in Appendix A are also included in Appendix B. So, it is critical to review both lists to determine the reporting requirements.

Companies with different business activities classified in different NAICS codes often get tripped up by the “establishment” rule. Using the wrong NAICS code could cost an employer time, money, and possibly public shaming.

2. OSHA’s unprecedented access to data is a powerful enforcement tool.

Under the new rule, OSHA will have access to substantially more injury and illness data than they do today. With this additional data comes increased enforcement and compliance risks. The data strengthens OSHA’s ability to target employers in “programmed inspections,” such as National Emphasis Programs (NEP), predetermine whether the establishment should fall under the instance-by-instance citation policy, determine worksite areas to scrutinize based on the injury and illness history, expand the scope of an inspection, issue willful citations, and target employers for tough wall-to-wall site-specific inspections. To protect the privacy of workers, the rule does not require employee and healthcare provider names and addresses from Forms 300 and 301, however, it does require some identifying information, such as job title, hire date, birth date, and gender, which could lead to targeting specific employees for interviews during an inspection.

3. Data is published on OSHA’s public website.

While business groups have generally opposed the rule, the public exposure aspect of the regulation has caused the greatest concern. The raw data often does not reflect how or why an injury occurred and can present an unwarranted negative picture of the employer’s safety practices, damaging its reputation. Also, once the injury and illness data are reported and publicized, it’s going to be difficult for employers to make revisions. The media, competitors, unions, plaintiff’s attorneys, investors, insurance companies, potential customers, prospective employees, and other third parties have easy access to the information, which can be misinterpreted or misrepresented.

Further, the records may reveal propriety information and employee privacy may be violated. Although OSHA states that it will use software to remove sensitive employee information before posting, it’s unknown how effective this will be and employers are encouraged to be proactive in removing all personal information that is not required.

4. It’s complicated and mistakes are common.

The rules governing what is “recordable” are complex and there are many nuances. Each potential recordable injury or illness must be scrutinized. Carefully evaluate whether an injury or illness is work-related and whether it resulted in a recordable criterion. Over-reporting, which would indicate higher injury rates, has many adverse consequences including the likelihood of an inspection, possible negative publicity, and the loss of contracts. Underreporting has enforcement consequences and increases the likelihood of penalties.

While it’s critical to get recordkeeping right, it’s not easy. Some common mistakes include undercounting the number of employees, counting the day of the injury, interpreting ‘medical treatment’ too broadly, double counting a case as days away and restricted, counting workdays rather than calendar days for days away, recording a case in more than one year, failing to include injuries or illnesses of temp/contract workers, assuming all worker comps claims are recordable, failing to keep logs up to date for five years, recording over the 180-day cap, among others. Establishing a compliant reporting system and ensuring the team responsible for recordkeeping has the requisite knowledge needs to be a top priority.

5. Recordkeeping violations mean citations, heightened risk of repeat citations, and exposure to multiple instance-by-instance citations.

From October 2022 through September 2023, there were 413 inspections related to 1904.41 – Electronic submission of Employer Identification Number (EIN) and injury and illness records to OSHA. All inspections resulted in a citation with penalties totaling $441,653. Although the average cost of a citation is low, it opens the door for repeat violations which carry 10 times higher penalties than Serious and Other-than-Serious violations, currently up to $156,259.

The new Instance-by-Instance (IBI) citation policy, which just expanded this year, can also come into play. This permits multiple citations of the same standard, including recordkeeping violations, even Other-than-Serious violations, particularly when the proposed recordkeeping citations are related to injuries or illnesses that occurred because of a serious hazard or an employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye. The IBI policy could lead to substantial penalties if OSHA were to individually cite each employee’s injury or illness that an employer fails to report electronically.

6. Recordkeeping data can impact workers’ compensation rates.

OSHA recordables and workers comp claims are not identical—there can be comp claims that are not OSHA recordable cases and OSHA recordable cases that are not comp claims. For example, first aid cases or diagnostic procedures can be compensable claims but are not OSHA recordable. However, when a case is both compensable and recordable, it’s important to ensure that the information aligns.

For insurance companies, OSHA public records provide a different lens into a business’s safety risk profile. For example, the data includes days away from work and days with work restrictions and an employer’s DART rate is a factor used by insurance companies to determine workers’ compensation insurance premiums. Employers should ensure that they record only cases that are required by the regulations. The more cases that are recorded, the higher the DART rate, and the higher the DART rate, the more employers can expect to pay in workers’ compensation premiums.

This new rule is another tool in OSHA’s arsenal of aggressive enforcement. Accordingly, it is more important than ever to make sure your organization fully understands the ins and outs of the recordkeeping and reporting requirements. As Certified WorkComp Advisors, we are here to help.

Employers in the 26 state jurisdictions that operate their own occupational safety and health programs should be mindful that compliance obligations may differ.