By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

Check out an updated 2020 version of this article here.

This is your yearly reminder about the important February 1^st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1^st every year, however, employers must:

• Review their OSHA 300 Log(s);
• Verify the entries on the 300 Log are complete and accurate;
• Correct any deficiencies identified on the 300 Log;
• Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
• Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary:

1. Not having a management representative with high enough status within the company “certify” the 300A;
2. Not posting a 300A for years in which there were no recordable injuries;
3. Not maintaining a copy of the certified version of the 300A form;
4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded; and
5. Confusing or conflating the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal.

1.  Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.”  Specifically what the company executives are certifying is that they:

1. Personally examined the 300A Annual Summary Form;
2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

• An owner of the company (only if the company is a sole proprietorship or partnership);
• An officer of the corporation;
• The highest-ranking company official working at the establishment; or
• The immediate supervisor of the highest-ranking company official working at the establishment.

2.  Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

3.  Maintaining a Copy of the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1^st and April 30^th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:

• The underlying OSHA 300 Log;
• The certified 300A Annual Summary Form; and
• Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

4.  Updates to OSHA Injury and Illness Recordkeeping Forms 

Another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

5.  Not to be Confused with Electronic Recordkeeping

As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s E-Recordkeeping Rule.  The deadline in 2019 for employers to electronically share data from their 2018 300A forms with OSHA is currently set for March 2, 2019, naturally trailing the deadline to prepare the summary data from which the E-Recordkeeping submission derives.

Note, there are still a few State OSH Programs that have not adopted the E-Recordkeeping Rule, despite OSHA’s directive in the final rule for state plans to adopt substantially identical requirements within six months after its publications, and an April 30, 2018 press release announcing that all employers in State Plan States should implement the Rule. To date, Maryland, Wyoming, and Washington have still not adopted an E-Recordkeeping Rule, and covered establishments in those states are technically not required to submit data by the March 2^nd deadline.

The future of the Rule in general, not just those delinquent states, is uncertain.  After years of industry backlash and multiple legal challenges, OSHA issued a Notice of Proposed Rulemaking on July 30, 2018 to revise the E-Recordkeeping Rule.  Rather than settling the status of the E-Recordkeeping Rule, this proposal will likely just mire the rule in further controversy.  Here specifically is what the proposal entails:

• Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
• Require employers to submit their Employer Identification Number (EIN) along with the data.

83 Fed. Reg. 36494 (July 30, 2018).

The Proposed Rule includes only one significant change to the current regulation – eliminating the requirement for the largest employers (those with establishments with 250+ employees), to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data, and does not touch the troubling anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs).  There are also pending cases in federal courts challenging the data submission and anti-retaliation requirements.

All of that is to say, the future of E-Recordkeeping is not entirely clear… unlike the well-established duty to post those 300A forms in a couple of weeks!