OSHA Has a “Naughty” List – And Nearly One-Third of Large Employers Are on It. Are You?

OSHA (the Occupational Safety and Health Administration) issued its electronic injury reporting rule in May, 2016. When issued, OSHA had intended all employers (over time) to submit their injury and illness records (OSHA Form 300 log of work-related injuries and illnesses), OSHA Form 301 (injury and illness incident report), and OSHA 300A (annual summary of work-related injuries and illnesses by establishment)) via a “secure” electronic system. OSHA would then use this information to publicly shame employers who had high injury or illness rates. The initial electronic filing obligation was limited to employers with 250 or more employees and employers with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses. The initial filing was limited to the OSHA Form 300A, with a filing due date of July 1, 2017; which was then later moved back to December 30, 2017.

In the lead up to Dec. 30, 2017, some 214,000 300A forms were filed; however, this fell far short of the more than 350,000 reports OSHA had expected. That is, nearly one-third of all employers who were otherwise required to electronically file their OSHA 300A failed to do so.

As a result, on February 21, 2018, OSHA issued Interim Enforcement Procedures for Failure to Submit Electronic Illness and Injury Records. The Interim Enforcement Procedures required OSHA compliance officers to seek evidence, when conducting any inspection, of whether the employer had met its electronic filing requirement; and if not, to then issue an Other-Than-Serious citation, with a potential penalty of up to $12,934.

On June 26, 2018, OSHA reminded employers of their obligation to file the 2017 OSHA Form 300A via the electronic web site by the July 1, 2018 deadline. Again, there has been a significant dearth of filings. OSHA has decided to take the “stick” approach, and on October 17^th, it announced its new Site-Specific Targeting 2016 Program. According to the OSHA Release on the Program, “the agency will perform inspections of employers the agency believes should have provided 300A data, but did not for the CY 2016 injury and illness data collection.” Where a compliance officer discovers a failure to comply with the electronic filing requirement (for 2017’s obligation), Other-Than-Serious citations are to be issued consistent with the Interim Enforcement Procedures.

The web site for filing a required OSHA Form 300A will no longer accept 2016 filings, but will continue to allow employers to upload their 2017 Form 300A, likely through the remainder of the year. Forms filed after the July 1^st deadline are marked as “late,” but under the Interim Enforcement Procedures, any citation issued for failing to timely file the form would not be penalized if it was filed prior to the inspection.

In 2019, employers who are required to file their Form 300A electronically must do so by March 2, 2019.

While OSHA under the Trump Administration has continued to press employers to comply with the electronic filing obligation of the OSHA 300A, it has scaled back any expectation that requirements for filing the OSHA 300 log or the OSHA Form 301s will come to pass. On September 28, 2018, OSHA issued a proposed rule eliminating the electronic filing requirement for the 300 Log and Form 301s.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.