By Eric J. Conn
The one question I have been asked more than any other about OSHA’s new final rule for injury and illness recordkeeping electronic submission (aka the “Improve Tracking of Workplace Injuries and Illnesses” Rule), is whether the threshold numbers of employees that trigger data submission requirements apply corporate-wide or by individual establishment within the company.
The new recordkeeping rule requires establishments with 250 or more employees to submit to OSHA annually their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries, and requires establishments with 20-249 employees in certain so-called “high hazard industries” to submit to OSHA annually the information from their 300A Annual Summaries only.
The question goes to those two threshold triggers for reporting. Specifically, do employers count the:
- Total number of employees across the entire company, and if that total number exceeds 20 or 249 employees, report the applicable recordkeeping data for all locations; OR
- Employee numbers at each individual location, and report the applicable recordkeeping data for only locations where the employee count exceeds 20 or 249?
The data submission requirements of the new rule are tied to individual “establishments.” OSHA’s Injury and Illness Recordkeeping regulations define establishment at 29 C.F.R. 1904.46 as:
“a single physical location where business is conducted or where services or industrial operations are performed.”
Accordingly, the new data submission rule requires a location-by-location determination about whether and what to report, based on:
- the number of employees at each particular location;
- whether that number meets one of the two threshold levels for reporting; and
- for the 20-249 threshold, whether that establishment is in a covered high-hazard industry by NAICS code.
The applicable employee count is the total number of employees at the individual workplace at peak employment at any point during the year, including temporary employees, seasonal workers and part time employees.
During the rulemaking, OSHA considered making the requirement to submit data an enterprise-wide obligation for enterprises with a certain minimum number of establishments. OSHA rejected adopting that alternative in the final rule, however, because it determined that would be too difficult to administer based on differing corporate structures and due to the partial exemptions based on certain NAICS categories. In the final rule, OSHA does permit an enterprise or corporate office to electronically submit data on behalf of multiple establishments if it has control over the relevant recordkeeping documentation, but the obligation for which establishments must report and the data itself are still establishment-specific.
For more 
information about OSHA’s new recordkeeping electronic data submission rule, read our detailed article on the OSHA Defense Report blog, and join attorneys from Conn Maciel Carey’s national OSHA Practice on June 7, 2016 at 1:00 PM for a complimentary webinar: “Get the Record Straight: OSHA’s Proposed Injury and Illness Recordkeeping Rules.” Click here for more information about the webinar and to register.