In May of 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule “Improve Tracking of Workplace Injuries and Illnesses” to revise its recording and reporting occupational injuries and illnesses regulation.
This ruling, which became effective on January 1, 2017, requires establishments with 250 or more employees, as well as establishments with 20 or more employees in high risk industries, to electronically submit their 300A Form data to OSHA on an annual basis using the agency’s Injury Tracking Application (ITA).
On July 30, 2018, OSHA published a Notice of Proposed Rulemaking (NPRM), which rescinds the agency's previous requirement for establishments with 250 or more employees to electronically submit Forms 300 and 301. They are currently in the process of reviewing comments on this NPRM and are hoping to publish a final rule in June 2019.
This article reviews the steps employers must take to comply with the rule and provides an overview of the NPRM's provisions. If you are new to OSHA recordkeeping check out our Ultimate OSHA Recordkeeping guide for the basics on OSHA recordkeeping.
What data must organizations submit electronically to OSHA in 2019?
In 2018, all covered establishments were required to electronically submit 300A form data for the 2017 calendar year by July 1.
Initially, the final rule also required establishments with 250 or more employees to electronically submit additional injury and illness data from Forms 300 and 301 by this July 1 deadline.
However, in November of 2017, OSHA stated that it would not accept Form 300 and 301 information, and that the agency would instead issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the final rule, including the collection of Form 300 and Form 301 data.
On July 23, 2018, the Office of Management and Budget completed its review of the NPRM, and a week later on July 30, the NPRM was published in the Federal Register.
The NPRM rescinds the requirement to electronically submit Forms 300 and 301 for establishments with 250 or more employees. OSHA cited risk of disclosure of this sensitive information, costs to collect the data, and the burden of reporting the data on these forms as unjustifiable given uncertain benefits.
Starting in 2019 and continuing for each year thereafter, organizations must submit 300A form data collected in the previous calendar year by March 2. The table below further clarifies what data will be due by the rule’s submission deadlines.
|Submission Year||Data Collected in Calendar Year||Establishments with 250 or More Employees||Establishments with 20-249 Employees||Submission Deadline|
|2017||2016||Form 300A||Form 300A||December 15, 2017|
(Per the NPRM)
|Form 300A||July 1, 2018|
(Per the NPRM)
|Form 300A||March 2, 2019|
What else should I know about the NPRM?
The NPRM also requires establishments to electronically submit their Employer Identification Number (EIN) along with their Form 300A injury and illness data, likely to assist in enforcement of the rule.
It's important to keep in mind that the NPRM has not eliminated the requirement for employers to fill out and keep records of 300 and 301 forms, it has just eliminated requirements to submit this data to OSHA electronically. You should still keep records of these forms and should be ready to present them to a compliance officer as part of an OSHA inspection.
Policies for Employers under State Plans
On April 30, 2018, OSHA issued a press release correcting an implementation error that impacts the compliance obligations of employers in state-plan states.
This correction stated that covered establishments in all states must now submit Form 300A data using OSHA’s ITA portal, even if an establishment is covered by a State Plan that has not completed adoption of their own state rule. OSHA also clarified that state government and local government establishments operating under State Plans are required to electronically submit Form 300A data if they otherwise meet the criteria for compliance.
The majority of states operating under a State Plan have adopted an identical or similar version of the rule. However, a few state plans have yet to implement the electronic recordkeeping rule, including Maryland, Utah, Washington, and Wyoming.
Previously California was among the states yet to adopt the electronic recordkeeping rule. However, on October 18 2018, California's Division of Occupational Safety and Health (DOSH) proposed an emergency regulation to require California employers to submit their 300A Form to OSHA's ITA portal.
The emergency regulation was approved on November 1st by the state's Office of Administrative Law. The regulation states California employers have to submit their 2017 300A Forms to OSHA no later than December 31, 2018, and prepare to submit their 2018 300A Forms by the March 2, 2019 deadline.
Per the NPRM, OSHA is still requiring employers in state plans to submit their data. However, employers located in these states should be aware that an OSHA official recently clarified that the federal agency does not have jurisdiction in State Plan states to enforce the regulation and can not issue citations to employers for failing to electronically submit 2017 300A data.
What happens if an employer failed to submit their 300A data by the first filing deadline?
As shown in the table above, the final rule’s first data submission deadline was December 15, 2017, by which time all establishments covered by the ruling were expected to electronically submit their 2016 300A Form.
During the lead-up to the first submission deadline, 60,000 accounts were created within the ITA and over 214,000 300A forms were submitted. However, these submissions fell short of the number of forms that OSHA had anticipated to receive.
According to the agency, a little over one-third of establishments required to file their data electronically did not comply.
OSHA has since issued a memorandum outlining the agency’s enforcement policy of the electronic recordkeeping rule. As part of any onsite inspection, OSHA’s compliance officers will now inquire whether an establishment has electronically filed its 300A form.
If the compliance officer learns that the establishment was required to electronically submit its 300A form and failed to do so, OSHA will issue an other-than-serious citation for failing to comply with the regulation. OSHA may also pursue a full recordkeeping audit if there is evidence of potential systemic recordkeeping issues.
In October 2018, the agency also announced that general industry employers who fail to electronically submit Form 300A data will be selected at random for OSHA inspections. OSHA will also target employers with high DART (Days Away, Restricted or Transferred) rates as part of this initiative. OSHA will use these data to create new programmed inspection lists for use by its Area Directors and State Plan states.
OSHA hopes the program will boost electronic recordkeeping compliance.
If you weren't able to submit your data by the deadline in previous years, this year is your chance to comply.
The Bottom Line: Recommendations for Employers
OSHA’s enforcement memorandum makes it clear that the agency is committed to the electronic collection of 300A Form information.
For establishments that have complied with the rule in previous years, submitting your 2018 Form 300A data by the March 2, 2019 deadline should be straightforward, as safety professionals will already have set up their organization’s ITA account, and will be familiar with the portal.
For establishments that will be submitting their data for the first time, it’s simple and easy to create an ITA account. However, to avoid setting up duplicate accounts for your company (and to avoid the duplication of data submissions), it’s best to coordinate with your team and clearly designate which individual(s) will be responsible for using the ITA and creating an account for your organization.
You can choose between two methods to submit your recordkeeping data, manually or through a batch submission process.
For manual submissions, you first need to add your establishments to the application by creating profiles for them. Once you have set up your establishments, you can then enter and submit OSHA 300A data for each one via a web form.
For a quicker and simpler submission process, the ITA also offers the option to upload a CSV file containing 300A data for many establishments at once. This method is ideal for employers that need to submit data for multiple establishments.
Taking the time now to familiarize yourself with the ITA will pay off, as OSHA has continued its commitment to collecting 300A information with its proposed rulemaking.
As the agency continues to seek comments on the NPRM, employers should stay tuned for further updates on OSHA's electronic recordkeeping requirements in the coming months.
Clare Epstein is Chief Operating Officer of IndustrySafe, Inc. and oversees IndustrySafe Safety Management Software. Numerous organizations throughout the United States utilize IndustrySafe’s Incidents module to record, track, and analyze a variety of safety incidents; create accurate regulatory reports, including OSHA 300, 300A, and 301 logs; and prepare their 300A form data for electronic submission.