OSHA recordkeeping deadlines looming: five reasons to get it right

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete, accurate, and any deficiencies are corrected. There are only two partial exemptions to OSHA’s recordkeeping requirements. (Exemptions to the recordkeeping rule are considered partial because all employers must report any employee’s work-related fatality, in-patient hospitalization, amputation, or loss of an eye within a specified time.)

The first exemption is for small companies with 10 or fewer employees. If at any time during the year, the entire company had more than 10 employees, including seasonal, salaried, hourly, temporary, and part-time employees, it is required to record safety incidents, unless it falls under the second exemption, which includes some low-hazard industries.

It’s important to note that the small size exemption is based on the number of employees in the entire company at the company’s peak employment during the last calendar year. However, the industry classification exemption applies to individual business establishments, not companywide.

Two important deadlines are approaching. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are physically located in workplaces, no later than February 1, 2023, and kept in place until April 30. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300.

The second important date is March 2 when all establishments with 250 or more employees that are required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must submit the Form 300A electronically. The Injury Tracking Application (ITA) has transitioned its login procedure to the public’s one account access to government applications, Login.gov. All current and new account holders must connect their ITA account to a Login.gov account with the same email address to submit Calendar Year 2022 Form 300A data.

Here are five reasons you should take the time and effort to get it right:

1. OSHA is employing AI to determine if companies are not complying with e-recordkeeping — Recognizing that many employers have not complied with the e-recordkeeping requirement, an enforcement program that matches new inspections against a list of potential non-responders and reports the matches to Area Offices was launched in April 2022. If the company cannot produce evidence of filing when inspected, it will be issued a citation, with a potential penalty of $14,502. OSHA is also analyzing 2021 submissions from large employers to identify corporate-wide non-responders.Non-compliance is not always intentional. The list of industries required to report electronically is broader than one might think. For example, grocery stores, general merchandise stores, and messengers and delivery with 20 or more employees must submit. Moreover, companies with different business activities classified in different North American Industrial Classification (NAICS) codes often get tripped up by the “establishment” rule.OSHA defines an establishment as a “single physical location where business is conducted or where services or industrial operations are performed.” The industry classification partial exemption applies to individual business establishments, not companywide. Employers must keep a separate log for each establishment that is expected to be in operation for a year or longer and matches a NAICS code on the list.Another common mistake is undercounting the number of employees when determining if a company must comply. The applicable employee count is the total number of employees at peak employment during the year and includes seasonal, salaried, hourly, and part-time employees. It also includes temporary employees when the company performs day-to-day supervision of the worker.While failure to report puts a company on OSHA’s radar screen, some companies submit data even though they are not required to do so. Although this may seem harmless, OSHA can use the information to target enforcement activities.
2. Injury data is used to target tough wall-to-wall Site Specific (SST) inspections and provides a roadmap for enforcement during inspections — OSHA provides extensive information and created a decision-tree on the types of injuries and illnesses that need to be reported. Injuries and illnesses are recordable if they are work-related and result in death, days away from work, restricted work, or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed healthcare professional. Accurately determining recordability is no easy task as many nuances exist.While it’s critical to strictly adhere to OSHA requirements and not underreport, companies do not want to overreport the number of recordable cases as this can be a red flag. Inspections triggered by high incident rates are comprehensive, wall-to-wall inspection events. This means the compliance officer has the authority to examine and evaluate everything.Some common mistakes that can inflate the number of recordables include:
   • Assuming all Workers’ Compensation injuries are OSHA recordable
   • Including diagnostic procedures or doctor’s visit for observation as medical treatment
   • Double counting a case both as “days away “and “restricted” – only list the most serious outcome
   • Counting the day of the injury
   • Including first aid only cases
   • Entering a new log if there is a change in a case, such as surgery, rather than updating the existing log
   • Reporting more than one establishment on the same log
   • When a case continues into the next calendar year, recording the case in both years
   • Recording over the 180 calendar days away from work and/or days of job transfer or restriction cap

    

   Some common mistakes that lead to underreporting include:

   • Counting workdays instead of calendar days when counting days away or restricted days
   • Neglecting to include injuries/illnesses for temp/contract workers
   • Failing to enter and update the 300 log within seven days of receiving information
   • Assuming an injury is not recordable as a work restriction if the injured employee is still doing useful work
   • Confusion surrounding the criteria for determining if an injury or illness is “work-related” and classified as “recordable”
   • Not keeping the OSHA logs up to date during the required five-year period
   • Failure to undertake a case-by-case analysis for COVID-19 illness
3. Recordkeeping violations can be cited on a “per instance” basis and create a high risk of repeat citations — During any type of warranted inspection, a Compliance Officer can request copies of the company’s 300 logs and employer must provide copies of the log within four business hours, demonstrating the importance of keeping the logs up-to-date, complete, and easily accessible. They are often the first thing an inspector asks for and are viewed as a reflection of the company’s commitment to safety compliance. It does behoove an employer to try to persuade OSHA that any errors or omissions are not intentional. While OSHA has the discretion not to issue a citation if errors are minor or well explained, it also may issue a citation for every recordable injury that isn’t on the log, reasoning that each decision not to include a recordable injury or illness constitutes a separate violation. This increases the proposed penalties exponentially and occurs when OSHA concludes there is a deliberate, intentional effort by an employer to avoid recording occupational injuries and illnesses.Most recordkeeping violations are cited as “other-than-serious” violations with a potential penalty of up to $14,502. But one citation opens the door for future repeat citations, which can be as high as $145,027.
4. The data is public and easily accessible — Anyone can access the work-related injury and illness data that OSHA collects on the website. The public relation and employee morale implications are significant.
5. OSHA has proposed sweeping changes to reporting requirements — The proposed change in reporting obligations was published in the March 30, 2022 Federal Register and the comment period closed June 30, 2022. This rulemaking would have significant impacts on how employers report injuries and illnesses and how federal OSHA targets inspections.The labor law firm, Conn Maciel Carey, warns, “Thousands more establishments will be covered by this proposed amended E-Recordkeeping Rule, as the trigger will be 100 employees (rather than 250 employees), and the scope of data required for submission is significantly greater and significantly more invasive.”

It’s critical that companies understand their responsibilities and what needs to be reported and what does not, provide complete and accurate information, and meet deadlines. As Certified WorkComp Advisors, we are here to help.

Note: The information above reflects requirements under the federal standard 1904. State Plans may differ, but they must be at least as effective as the federal standard.