By James L. CurtisAdam R. YoungMark A. Lies, II, Ilana R. Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA intends to restore an Obama-era requirement that employers submit OSHA 300 logs and OSHA 301 reports electronically, ostensibly to improve the Agency’s data and to potentially target employers with injury rates over the industry average for additional scrutiny.

In the waning months of the Obama administration, OSHA issued a rule that required employers to submit all OSHA forms via an electronic reporting portal. After fits and starts, the Trump administration limited the electronic submission to only OSHA Form 300As (and not the full OSHA 300 logs) for establishments with 250 or more employees, and establishments with 20-249 employees that are in certain industries with historically high rates of occupational injuries and illnesses. Now, the Biden administration has drafted a new Executive Order to expand the documents employers must submit and revert to the prior rules.

OSHA proposes to amend its recordkeeping regulation to restore the requirement to electronically submit the employer’s OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301s (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records on an annual basis. OSHA State Plan states will be required to follow suit. Under the current regulation, these establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

Since the institution of the electronic submission rule during the Obama administration, OSHA has cited employers who failed to upload their information. This enhanced submission rule will create a tremendous administrative burden on employers, and the fluid requirements will create additional confusion and unintentional noncompliance. OSHA likely will use the information to send out warning letters, conduct inspections, and target employers who properly record injuries and illnesses if they happen to have injury and illness rates above their industry average. The Injury Tracking Application data is also available online, accessible to competitors, labor unions, and employees.  Employee-centered interests groups are also likely to weaponize the publication of work injury and illness data for use in organizing campaigns or to submit complaints to OSHA.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.