By Charles B. Palmer and Emily Figura, Michael Best
Many employers will be required to comply with a new reporting and recordkeeping requirement set forth by the Occupational Safety and Health Administration (OSHA) in its recently published final rule. The rule will result in publication of 2023 workplace injury data that certain employers are required to submit in March of 2024. This rule impacts a majority of employers who have workplaces (establishments) with more than 100 employees.
This requirement applies to employers in the construction industry that have more than 100 employees. It also applies to employers in other specific industries listed in Appendix B to the new rule. The Administration’s rule revives an Obama-era regulation.
OSHA specifically sets a deadline for submitting 2023 data by March 2, 2024, into an electronic reporting system. OSHA has created what it says will be a secure website, the Injury Tracking Application (ITA), for this purpose. During the Obama Administration’s launch of this rule (which was later halted by the Trump administration) the website was hacked.
The regulation will require establishments with 100 or more employees in certain “high hazard” industries (Appendix A and B to the rule) to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. Employers will also have to include their legal names on any submission. As a reminder, the Form 300 refers to the Log of Work-Related Injuries and Illnesses, while the Form 301 refers to the Injury and Illness Incident Report. According to OSHA, construction is among the “high hazard” industries.
The size criterion of 100 or more employees is based on the total number of employees at an “establishment” during the previous calendar year. An establishment is defined under the OSH Act as “a single physical location where business is conducted or where services or industrial operations are performed.” This definition of “establishment” is easily understood when it comes to a factory, or warehouse, because there is a fixed property location where workers go to work each day. In certain industries, and especially construction, this is less well-defined.
If an employer, for example, is engaged in excavation work in multiple locations every year, the employer cannot define each job site as a separate establishment. OSHA will require the establishment to be the location of the construction company, not the jobsites were employees go to work. All the excavation workers will have to be combined. However, the following rules may provide some opportunity to separate business units for diversified companies if the employer has created separate recordkeeping for each business.
(i) Each of the establishments represents a distinctly separate business;
(ii) Each business is engaged in a different economic activity;
(iii) No one industry description in the North American Industry Classification System (2007) codes applies to the joint activities of the establishments; and
(iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
In addition, establishments must still abide by the existing Form 300A (Summary of Work-Related Injuries and Illnesses) submission requirement. Specifically, the Form 300A must be submitted to OSHA by establishments with 20 to 249 employees in the certain high-hazard industries listed in Appendix A and B to the rule. Establishments with 250 or more employees in industries that must routinely keep OSHA injury and illness records were already required to submit the 300A data into OSHA’s recordkeeping system, and this continues to be required. Again, construction is included in these “high hazard” industries. So, this results in the following requirement:
Importantly, OSHA also intends to publish data from employers’ submissions on a public website, after removing any information that could identify individual employees. However, it does not specify what information it plans to publish. OSHA posits that the new rule would “provide systematic access for OSHA to the establishment-specific, case-specific injury and illness information” and provide greater public access to “establishment-specific, case-specific injury and illness data.”
As part of this rule, OSHA will also update the North American Industry Classification System (NAICS) codes used in Appendix A, which designates the industries required to submit their Form 300A data, and will add Appendix B, which designates the industries that will now be required to submit Form 300 and Form 301 data. NAICS codes that will be covered by both Appendices A and B include:
OSHA clarifies that it will not collect the following information from employers’ Forms 300 and 301: employee names or addresses, names of health care professionals, or names and addresses of facilities where treatment was provided if treatment was provided away from the worksite.
So far, it does not appear that any party has filed a lawsuit to enjoin the regulation. However, it may still happen: In 2019, attorneys general from several states filed suit challenging the Trump-era OSHA rule (the most recent rule), which required only the submission of the Form 300A.
The rule takes effect on January 1. Parties will have 60 days from the effective date to challenge it, but if a challenge comes, it will likely be in the form of an injunction request shortly before or shortly after January 1.
