New OSHA work Injury Reporting Rule Will Subject Employers to Public Scrutiny

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.

"This requirement applies to employers in the construction industry that have more than 100 employees."

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.

What must be reported?

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.

How is the 100-employee count measured?

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.

  1. An employer may divide one location into two or more establishments only when:

(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.

  1. Employers must keep a separate OSHA 300 log for each establishment that is expected to be in operation for one year or longer. (So, a long-term construction project that lasts more than a year could be considered its own establishment).
  2. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
  3. Employers may include short-term establishment records in logs that cover individual company divisions or geographic regions.
  4. All individuals who are “employees” under the OSH Act are counted in the total. The count includes all full-time, part-time, temporary, and seasonal employees.

"In addition, establishments must still abide by the existing Form 300A (Summary of Work-Related Injuries and Illnesses) submission requirement."

What other reporting is required besides 300 and 301 data?

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:

  • Employers with less than 20 employees – exempt.
  • High hazard industries (including construction) with over 20 employees – submit 300A.
  • High hazard industries (including construction) with over 100 employees – submit 300A, 300, and 301.
  • Non-high hazard industries with over 250 employees – submit 300A.

Will my data be published?

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.”

How is OSHA defining covered construction industry?

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:

  • 23 – Construction.
  • 3331 – Agriculture, Construction, and Mining Machinery Manufacturing.
  • 4233 – Lumber and Other Construction Materials Merchant Wholesalers

What information should not be submitted from Employer data?

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.

Will this rule be challenged in court?

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.

What should employers do to prepare now?

With some weeks left before the rule takes effect, now is a good time for companies to review their current reporting and recordkeeping procedures. Employers should review their 300 logs both to verify that any recorded items are indeed recordable and to ensure that all recordable items are properly documented.

Employers should also decide now whether there is an opportunity to keep records for separate establishments, which may bring one or more establishments below the 100 employee (or 20 employee) thresholds.

As a reminder, OSHA requires that a company executive sign and certify that the information contained in the recordkeeping is true and accurate. OSHA has defined such an individual to include, in the case of corporations: (1) an officer of the corporation; (2) the highest-ranking company official working at the establishment; or (3) the immediate supervisor of the highest-ranking company official working at the establishment. Consequently, it is imperative that an employer does not task a lower-level employee with this responsibility. This is especially true given the heightened scrutiny this rule promotes.

Employers should also check with their worker’s compensation insurance administrator to determine the status of outstanding cases, and to assess whether they are indeed reportable. If there are updates or changes to cases, employers should evaluate whether their status will be finalized ahead of the deadline for the executive to sign the forms and before the March 2, 2024, submission deadline.

This is important because once these forms are electronically submitted to OSHA, they cannot be updated. Accordingly, the status of any reported cases as of the deadline will remain static in OSHA’s database. This means that employers may run the risk of underreporting or overreporting, with the attendant consequences, if they do not closely monitor case developments as the submission deadline approaches.

Reported cases can impact businesses in profound ways. The obvious result of overreporting is the increased likelihood of future regulatory scrutiny or inspection. And when OSHA does perform an inspection, they will have studied your data and will be looking to determine whether violations are ongoing, which may be considered a willful violation.

Considering OSHA’s announcement that employers’ data submissions will be made public online, there is also now a major reputational risk associated with overinclusive reporting. Federal contractors, especially, should bear in mind the impact of a high injury incidence rate on their business. Accordingly, ensuring the accuracy and reportability of cases is key.

As employers’ injury and illness data becomes subject to greater scrutiny, employers can also help themselves by not providing unnecessary detail that OSHA does not require. Many employers rely on worker’s compensation claims forms as a substitute for the OSHA Form 301. However, OSHA’s online Form 301 requires only a succinct description; in contrast, worker’s compensation claims include extensive detail. Employers should consider whether the expediency of using such claims descriptions justifies the risk of over-disclosure.

This rule will likely have a significant impact on construction industry employers. As 2024 approaches, employers should continue to monitor for any forthcoming OSHA guidance or updates on the rule. For any questions, please contact the Workplace Safety & Health Group at Michael Best & Friedrich LLP:


Charles B. Palmer is a Partner & Sub-Practice Group Leader, Workplace Safety & Health at Michael BestEmily P. Figura is an Associate Attorney at Michael Best. They can be reached at 414-581-2784.

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