Inside OSHA


Employer Attorneys Fear Pitfalls As E-Recordkeeping Rule Takes Effect

February 14, 2024

Attorneys for an industry law firm used a recent webinar to highlight what they say are likely pitfalls for employers as OSHA’s electronic recordkeeping and reporting rule comes into effect this year, including a heightened need to track injuries as they happen and the threat of repeated citations if a company fails to implement the new program.

Recordkeeping “is one of the few OSHA regulatory requirements that can be cited on a per instance basis, and that is confirmed that it can be cited on a per instance basis,” Lindsay DiSalvo, a partner at the firm Conn Maciel Carey, said during a Feb. 8 webinar on the 2023 rule.

While OSHA published its final rule re-establishing electronic recordkeeping and reporting mandates for many employers in the summer of 2023, its new requirements did not take effect immediately; rather, e-reporting for 2023 data opened on Jan. 2 of this year, and the deadline for submissions is March 2.

The rule largely matches OSHA’s 2022 proposal that aimed to revive Obama-era requirements rolled back during the Trump administration, though it narrowed several sector-specific exclusions that unions and their allies criticized in public comments.

While the compliance deadline is still a month away, DiSalvo emphasized that Occupational Safety and Health Review Commission (OSHRC) precedent could support multiple penalties if an employer fails to comply with several requirements of the new rule -- for instance, by improperly recording, or failing to record entirely, multiple entries on a firm’s “300 log” of work-related injuries.

“There are commission cases where they have accepted OSHA citing an employer on a per-instance basis for issues with their recordkeeping, specifically in insufficiencies or inaccuracies and how injuries and illnesses have been recorded on the 300 log tend to be the basis for the per-instance violation,” she said.

The 2023 rule generally seeks to re-establish Obama-era mandates that many employers electronically submit information from their injury and illness Forms 300, 301 and 300A to OSHA once per year, with several requirements that apply based on the number of workers at a firm and its industry classification. The rule also establishes a process for the agency to make versions of those reports available online.

DiSalvo and other speakers at the Feb. 8 event highlighted several potential violations they see as likely “mistakes” for employers still grappling with the terms of the new rule -- offering a potential preview of compliance issues that could spur enforcement action from OSHA.

“The first common mistake for record keeping relates to the time that you have to enter an injury or illness on the 300 log,” attorney Ashley Mitchell said. “You have seven days from the date that you learn about a recordable injury or illness to actually record that on the 300 log,” she continued, describing that as a “relatively quick turnaround” compared to what employers would be used to.

“It's advisable that you implement a universal system to track recordable cases so that ... you are able to see when the injury occurred, and you're able to keep track of when your seven days are, and whether or not you've actually recorded that injury on your 300 log,” Mitchell said.

While the new rule does not affect what injuries are considered “work-related,” it adds new requirements for how employers must record and report incidents that qualify, which employers have argued will unduly increase their compliance burdens.

‘Significant Expansions’

Timing will also be a factor for the section 301 form employers must use to record incidents that led to workplace injuries or illnesses. Operators “need to keep in mind that you need to complete the form 301 within seven calendar days as well. [They] are required to record the actual injury or illness on the 300 log and complete the form 301 incident report or an equivalent form within seven days,” Mitchell said.

In addition, firm partner Eric Conn cautioned that OSHA’s penalties for repeat recordkeeping violations have increased significantly in recent years. That, along with recordkeeping and reporting being a “high frequency standard,” makes the threat of enforcement even more serious, he said.

And DiSalvo noted that the final regulations narrowing of several past exclusions make it a “really significant expansion of the employers impacted by this rule, [and] a really significant expansion of the type of data that has to be submitted pursuant to this rule.”

The new requirements apply to businesses with 250 or more employees, as well as those with 20 to 249 workers in any of several “high hazard industries.” DiSalvo cautioned that even those figures could pose hurdles, since operators must consider “peak employment during the prior calendar year” to determine which category they fall into.

“That means the height of employment, the highest level of employment you have, that is the number that should be considered in determining whether you would meet any of those threshold level requirements.”

Mitchell cited other likely reporting mistakes such as properly describing an injury or illness, urging employers to develop “a standard format” for reporting and identifying specific injuries, illnesses or incidents as reportable. She said over-reporting could also lead to more enforcement, because “if it turns out that the amputation or inpatient hospitalization is not reportable and you make that courtesy report, OSHA could open up an inspection based on that courtesy report.”

She also encouraged employers to contact OSHA by phone rather than using online submission tools -- particularly for inpatient hospitalizations. “[Through] reporting by telephone, you get the opportunity to have a conversation and be clear that you're not quite sure what happened beyond the fact that you know, this incident is reportable,” she said. -- Sarah Mattalian (