Dive Brief:

• The Occupational Safety and Health Administration published Friday its final electronic recordkeeping rule requiring employers with 100 or more employees in certain industries to submit information from the agency’s Forms 300 and 301 once per year.
• OSHA’s rule also updates its system for determining which industries are subject to the information submission requirement. In a departure from the proposed rule, OSHA has retained the requirement for employers with 250 or more employees to electronically submit information from Form 300A once per year. Additionally, employers with 20 to 249 employees in certain designated industries will continue to be required to electronically submit information from Form 300A once per year.
• Per the rule, the agency will post data gathered via these submissions on a public website, with identifying information — such as employees’ names and contact information — removed. The final rule is effective Jan. 1, 2024.

Dive Insight:

The announcement represents OSHA’s second attempt at enhancing electronic record requirements, the first of which was proposed by President Barack Obama’s administration in 2016 but later rolled back by President Donald Trump’s administration.

Under the rule, covered employers will be required to make electronic data submissions to OSHA on March 2 of the year after the calendar year covered by each form. Employers submitting 2023 calendar year information would therefore need to do so by March 2, 2024.

In its April proposed rule, OSHA included a list of industries used to determine which employers with 100 or more employees must submit Form 300 and Form 301 information. Multiple waste industry categories are included in the list. 

The final rule expands that list, adding six more industries: logging; hunting and trapping; other furniture related product manufacturing; miscellaneous durable goods merchant wholesalers; taxi and limousine services; and other support activities for transportation.

In public comments written in response to the agency’s proposed rule, several employer advocates voiced concerns about the information collection. The U.S. Chamber of Commerce, for example, said the inclusion of data on the number of employees and hours worked on Form 300A annual summaries could be used by competitors to gain insight on employers’ “efficiencies and productivity rates.”

“Furthermore, the establishment-specific nature of the data from the 300 and 301 forms will mean that adversaries and parties wishing to mischaracterize an employer’s safety record will have no trouble doing so with great specificity,” the Chamber wrote. “Merely because an injury or illness is recorded does not mean that employer has a weak safety program, or any OSHA violations.”

Similarly, public comments from the Motor & Equipment Manufacturers Association said employers would need to expend “significant time and resources” to ensure that personally identifiable information is stripped from data submitted to OSHA. MEMA also said the expanded data collection would be unlikely to reduce workplace injuries and illnesses, adding that this data “would become stale by the time it is made public, and in any event, many workplace injuries occur due to circumstances entirely outside of an employer’s control.”

OSHA stated in the final rule that online availability of the data would allow the public to “determine which workplaces in a particular industry are the safest, and identify emerging injury and illness trends in particular industries” as well as make decisions about which companies and industries to support and work for.

In a media briefing Monday, Assistant Secretary of Labor for Occupational Safety and Health Doug Parker said covered employers should not include personally identifiable information in their submissions to OSHA, and that the agency crafted the reporting process to address such concerns. OSHA, Parker said, will also take steps to ensure sensitive information is not made public.

"Congress intended for the Occupational Safety and Health Act to include reporting procedures that would provide the agency and the public with an understanding of the safety and health problems workers face, and this rule is a big step in finally realizing that objective," Parker said in a press release. “The safety and health community will benefit from the insights this information will provide at the industry level, while workers and employers will be able to make more informed decisions about their workplace's safety and health."