Due to big changes impacting recordkeeping regulations, it’s very likely you have an important date approaching with OSHA in a few weeks. If you employ (or did employ anytime in 2016) twenty or more workers, you need to be paying attention, because this probably impacts your business. Under a new rule, or by December 15  2017, most manufacturing and construction companies–as well as a host of other industries– must electronically submit their 2016 300 Log data to OSHA. (Note: On November 27th, OSHA postponed the deadline to December 15, 2017, allowing employers an additional two weeks from the earlier deadline (Dec 01) to get forms submitted.)

What is the Electronic Submission Rule?

This new rule requires certain high-hazard employers to electronically submit injury and illness data found on the 300 Logs to OSHA online. The rule impacts both large companies, (those that employ 250 or more) as well as smaller companies that employ 20 to 249 workers.

The manufacturing sector with NAICS codes that begin with 31-33, as well as the construction sector, generally fall almost completely under this rule, provided of course, they employ 20 or more workers.

Under the rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from Forms 300 A for 2016. These same establishments will then submit all recordkeeping forms (300, 300A, and 301) for subsequent years on a phased in compliance schedule.

Establishments with 20-249 employees in certain industries must electronically submit information Form 300A for 2016 and for subsequent years, on the same phased in compliance schedule. But they will only be required to submit the 300A, not the entire trifecta of documents, as larger companies must.

• For 2016, the 300A is due by December 15, 2017.
• For 2017, the records are due by July 01, 2018.
• For 2018, the records are due by March 02, 2019
• And in each subsequent year, the information is due by March 02.

OSHA has provided a secure website, the Injury Tracking Application (or ITA) for the electronic submission of the information.

What is the purpose of this rule?

OSHA intends to analyze this data to assist in making enforcement and compliance more effective. The rule also carries provisions to prevent retaliation by employers and impacts incentive programs and drug testing that may be retaliatory in nature.

And in time, some of the data will also be posted to the OSHA website.  The data will be redacted, and will remove any personally identifiable information (employee name, address, treating physician, etc.) before making the data publicly available.

Why does OSHA want to post this information? 

The agency feels that employees and the public have the right to view the safety record of employers. It hopes that public awareness will drive employers to want to create a safer and healthier workplace.

On this topic, OSHA has stated:

Currently, little or no information about worker injuries and illnesses at individual employers is made public or available to OSHA. Under the new rule, employers in high-hazard industries will send OSHA injury and illness data that the employers are already required to collect, for posting on the agency’s website.

Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.

OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.

How will electronic submission work?

OSHA has provided a secure website that offers three options for data submission. First, users are able to manually enter data into a webform. Second, users are able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). The Injury Tracking Application (ITA) is accessible from the ITA launch page, where you are able to provide the Agency your 2016 OSHA Form 300A information.

What about state plan OSHA programs?

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.

Employers in Indiana should know that IOSHA will begin enforcing this area in 2018, for the 2017 submission. HOWEVER, the 2017 submission is due by July 01 2018, AND you are still required to submit 2016 logs, as per federal OSHA requirements.Remember, that some OSHA inspections in state plan regions are conducted by federal agents, from the nearest regional headquarters.

This means in rapid succession, (within 7 months) two years of 300 Logs must be submitted.

History of 300 Logs

Unless you are a partially exempt employer, (one who does not fall under the list of high-hazard industries) or one who employs ten or fewer employees, you might not have had to keep these records of work-related injuries and illnesses.

But for most employers, 300 Logs have been a way of life. Historically,  these forms remained in-house. Apart from notifications sent to you by the Bureau of Labor Statistics, inquiries by your Workers’ Compensation agent and the random OSHA inspection,  these were stored in a file cabinet for the required five years.

Clearly this changed with the Electronic Submission Rule.

However in 2015, the list of employers newly required to keep 300 Logs broadened to include many businesses that previously did not have to maintain these records.  You should check that list here, as well as check partially exempt employers found here. And of course, finally, check the list of industries required to submit 300 Logs on this list.

Please don’t confuse “submission” for “keeping records.” As not all employers required to keep 300 Logs must submit them.

To recap:

• Those who have 10 or fewer workers, regardless of industry, are not required to keep 300 Logs, although it’s a good practice, as it helps identify and correct areas of hazards. And keeping 300 Logs may also assist should you have a worker with a severe injury and have to call OSHA.
• Those who are on the partially exempt list, are not routinely required to keep records either.
• Those who employ more than 10 and are not on the partially exempt list, are required to keep 300 Logs.
• And finally, those who employ 20 or more and are on the list of high-hazard industries must not only keep them, they must submit them.

Other provisions of the Electronic Submission Rule

This same law also has provisions that protect workers from retaliation, and covers incentive programs, as well as aspects of drug testing which may impede employees from reporting accidents and injuries. These provisions are already being enforced and active.

While the OSH Act already prohibits discriminating against an employee who reports a fatality, injury, or illness, OSHA has not been able to act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation.

In contrast, under the new Electronic Submission final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation.  

What should I be doing?

Apart from brushing on your 300 Log skills and cleaning up your records to submit, evaluate your safety program and the method that employees report accidents and injuries. And you should be pulling out your drug testing policy and reviewing it to ensure it meets state and federal requirements.

This is important, because if your company does not have a program that encourages employees to report unsafe conditions to management and/or if your company does not act to make those corrections, you may be cited under this section of the Final Rule.

For example, if your safety program is one that strives to be “accident free” and rewards departments or employees when there are no injuries or accidents, such a program may discourage reporting potentially unsafe acts because employees will not receive the incentive. (Or employees who see unsafe conditions, near misses or accidents may be harassed by other workers for reporting such events.)

You’ll not want that type of safety program– especially now.

Instead, incentive programs should focus on methods to encourage reporting unsafe conditions. For example, many employees are never informed the chain of command for reporting unsafe conditions. And likewise, employers often don’t have a dedicated (written) mechanism in place for responding to these reports. Correcting this is simple for most companies and by doing so, you’re providing a workplace that demonstrates it is free of retaliation.

You absolutely should have a current OSHA poster up, too. As OSHA states this is one way employers can inform workers of their rights to report unsafe conditions. A free one is here.

You most certainly can still perform drug testing post-accident, but you’ll need to ensure your entire drug-free workplace program (policy/training and methods) meet the current state & federal requirements or it could be considered retaliatory in nature.

About this, OSHA states, “The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.”

OSHA answers questions pertaining to the above here. 

Definitely ensure your safety program is a proactive one, not a knee jerk response to accidents and injuries. Now with reporting these events to OSHA, and the eventual public awareness, you’ll not want a reactive safety program that functions on damage control alone.

What if I don’t have any recordable injuries?  Do I still have to submit or keep forms? 

If you’re lucky enough to not have any recordable injuries, you must still complete the forms, enter a zero in each appropriate area of the 300A, include hours worked, as well as number of workers and have a signature of the highest ranking officer of the company on the form.

You must also post the preceding year 300A (summary) from February 01 – April 30th in an area frequented by employees. And if you are required to submit the Logs, as per the Electronic Submission Rule, you must still submit that document information.

Additionally, if you need assistance in filling out 300 Logs or need other information, read our posts about this topic:

• Back to the Basics: 300 Log 101, which offers a great background on 300 Logs, including exemptions and an overview of the forms.
• Is that injury recordable, reportable or non-recordable? This article discusses and defines medical treatment (recordable) versus first aid (non-recordable).
• No Hail Mary Pass: The Electronic Submission Rule is Here, which gives a history of this rule.

And as always, feel free to reach out to me regarding any issue or question you may have.