The Occupational Safety and Health Administration’s (“OSHA”) Notice of Proposed Rulemaking to “Improve Tracking of Workplace Injuries and Illnesses” was published in the Federal Register on November 8, 2013.  The proposed rule amends the recordkeeping regulations to add three new requirements for the electronic submission of injury and illness information to OSHA.  In addition, OSHA will publicly post the electronically-submitted injury and illness information on its website and may create a searchable online database.  Employers and the public will have until February 6, 2014, to submit written comments on the proposed rule.   

The proposed rule does not expand coverage of the recordkeeping requirements or change the information that an employer is currently required to collect and maintain under 29 C.F.R. Part 1904.  Only those employers, who are already required to keep injury and illness records, will be subject to the new electronic-submission requirements discussed below.  Thus, employers with 10 or fewer employees or establishments in certain low-hazard industries, such as finance, insurance, retail, or real estate, are not subject to the new electronic requirements unless OSHA informs them in writing to keep such records and electronically submit them.   

Electronic Submission Requirement 1:  OSHA will require those establishments that are required to keep injury and illness records under 29 C.F.R. Part 1904, and that have 250 or more employees at any time in the previous calendar year, to electronically submit to OSHA on a quarterly basis the information provided on OSHA Forms 300 and 301.  Thus, employers will be required to electronically submit to OSHA the employee’s name, job title, date of injury, the location where the injured occurred, description of the injury or illness, the recordkeeping classification, and the number of days away from work or restricted duty, if any, as well as more detailed information about the individual injuries.   

OSHA asserts that requiring establishments to submit this information quarterly will ensure the most current data is available.  OSHA has considered, as an alternative, to require monthly or annual submission of said information instead and seeks comment on these alternatives.  OSHA has also considered, as an alternative, to limit this proposed requirement to only those industry groups that meet a designated Days Away From Work, Job Restriction, or Job Transfer (“DART”) rate cut-off of 2.0 or 3.0.  

Electronic Submission Requirement 2:  OSHA also will require those establishments that are required to keep injury and illness records under 29 C.F.R. Part 1904, have 20 or more employees at any time in the previous calendar year, and that are in certain designated industries, to electronically submit to OSHA on a yearly basis the information provided on the OSHA Form 300A.  Thus, employers will be required to electronically submit the total number of cases for each recordkeeping classification, the total number of days away from work or restricted duty, and the total number of injury and illness types.  This requirement will replace OSHA’s annual Data Initiative survey and the data requirements found in Section 1904.41(a) – the number of workers employed; the number of hours worked by the employees; and the total number of injury and illness types.   

The designated industries subject to this new electronic filing requirement include nearly all industries covered by 29 C.F.R. Part 1904 with a 2009 DART rate in the BLS Survey of Occupational Injuries and Illnesses of 2.0 or greater.  Such industries include Construction, Manufacturing, Warehousing and Storage, Nursing Care Facilities, and Commercial and Industrial Machinery and Equipment Repair and Maintenance, to name a few.  All designated industries subject to this requirement are listed in Appendix A to Subpart E of Part 1904.   

OSHA has considered, as an alternative, to limit this proposed requirement to only those industry groups that meet a designated DART rate cut-off of 3.0 instead and seeks comment on this alternative.  

Electronic Submission Requirement 3:  OSHA will require all employers who receive notification from OSHA to electronically submit specified information from their injury and illness records.  OSHA will notify employers of individual data collection requests through publication in the Federal Register, its newsletter and website, as well as via mail.  

Enterprise-Wide Submission:  OSHA is also considering a provision that would require an enterprise with multiple establishments (such as five or more) to collect and electronically submit the information contained on the OSHA Form 300A for all of its establishments that are required to keep injury and illness records under 29 C.F.R. Part 1904.  OSHA believes that requiring enterprise-wide submission would improve employer awareness and oversight of workplace safety and health at the enterprise level and would enable OSHA to calculate enterprise-wide injury and illness rates.  

Data Submission:  To submit the data, OSHA will provide a secure website, where employers will be required to register their establishments before receiving a login ID and password.  Employers will be given the option to either enter the data directly into the website or upload a batch file.

OSHA asserts that these new requirements will result in safer workplaces and better compliance with the Act as a result of expanded OSHA access to timely, establishment-specific injury and illness information.  OSHA maintains that such information will identify the workplaces where workers are at greater risk and where it should target enforcement efforts and compliance assistance.  OSHA also asserts that making timely, establishment-specific injury and illness information public will encourage employers to maintain and improve workplace safety and will make current and potential employees more aware of the hazards in the workplace.  In addition, OSHA states that making this informationpublicly assessable will allow researchers to identify patterns of injuries and illnesses in certain industries or establishments.  Finally, OSHA asserts that this proposed rule will improve the accuracy of the reported data because employers will make more of an effort to ensure that the data is accurate.

OSHA estimates that that this proposed rule will cost $11.9 million per year, with costs of $183 per year for affected establishments with 250 or more employees and $9 per year for affected establishments with 20 or more employees in certain designated industries.