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

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.  The requirement applies toall U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of very 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).

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.

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

• Review their OSHA 300 Log(s);
• Verify the entries on the 300 Logs are complete and accurate;
• Correct any deficiencies identified on the 300 Logs;
• Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
• Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five 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 just because there were no recordable injuries that year;
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 injury outcomes 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.  Although, in years where there have been no recordable injuries, there is no requirement to prepare a 300 Log or any 301 Forms, OSHA regulations still require employers to complete the 300A form by inputting establishment and employment information (e.g., employee count and man-hours worked), then entering zeroes into each column related to the number of injuries and day counts, and posting 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.

Note that for injuries that occurred in 2019 that resulted in the injured employee missing days of work or being on a work restriction in both 2019 and 2020 (e.g., from December 28, 2019 – January 5, 2020), the day count calculated for your 2019 300A related to that injury must reflect the total days the employee was away or on restriction, including the days from both December 2019 and January 2020 (in this example, 9 days included in the day count on your 2019 300A).  Likewise, if the injured worker from that same December 2019 injury remains out of work or on restriction as of the February 1, 2020 300A deadline, you must estimate the total days the employee is expected to be away or on restriction, and use that total number, again including days from both 2019 and those expected in 2020, up to a maximum of 180 days, on the 2019 300A.

5.  Not to be Confused with Electronic Recordkeeping

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s 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 2020) is March 2, 2021.  Click here for more information about OSHA’s E-Recordkeeping Rule.

The February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s E-Recordkeeping Rule, which naturally trails the deadline to prepare the summary data from which the E-Recordkeeping submission derives.

The future of the E-Recordkeeping Rule may see some changes soon.  As you may recall, when the E-Recordkeeping Rule was first issued, during the Obama/Biden Administration, the rule require certain employers to submit not only 300A Annual Summary Data, but also case-by-case 300 Log level data and detailed data from 301 Incident Reports for each case on the 300 Log.  The Trump Administration’s OSHA, however, eliminated that requirement in January 2019, issuing an Amended Final E-Recordkeeping Rule that:

• Amended 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
• Required employers to submit their Employer Identification Number (EIN) along with the data.

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

Rather than settling the status of the E-Recordkeeping Rule, this change just mired the rule in further controversy.  It addressed only one of the significant concerns about the rule–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 amended rule left intact the concerning requirements for these large employers and many smaller employers regarding the troubling anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs), and OSHA’s intention or requirement to publicize the data collected under the rule.

Even though the Rule still permitted publication of the data, President Trump’s OSHA declined to do so on its website and refused to share the data in response to FOIA requests.  The agency indicated that since it was using the data for enforcement purposes (targeting employers to inspect based on the data submissions), it was temporarily exempt from FOIA requests under the active law enforcement exemption. As a result, in Public Citizen Foundation v. Department of Labor, public interest group Public Citizen filed a lawsuit in the U.S. District Court for the District of Columbia, challenging OSHA’s justification for not publishing or producing already-collected data in response to a Freedom of Information Act (“FOIA”) request.

In June 2020, a magistrate judge recommended that the court enter judgment for Public Citizen, finding that the records are not confidential. OSHA had until July 21 to object to the magistrate’s recommendation, but rather than object, on July 20, 2020, OSHA agreed to produce the records in full, and the U.S. District Court for the District of Columbia entered an order requiring that OSHA do so by no later than August 18, 2020.

Unfortunately, although the Trump Administration indicated that it would not publish employer data pursuant to the rule shortly after taking office and immense pressure to do, it did not withdraw this provision during the 2018-2019 rulemaking that revised the rule.

Less than two months after the DC District Court’s Order, OSHA has not only complied with Public Citizen’s FOIA request–it has also posted downloadable Excel spreadsheets of all employer injury and illness data collected for Calendar Years (“CY”) 2016, 2017, and 2018.  And last month, OSHA published the 2019 data.  The publicly available data includes:

• Employer name
• Facility and address
• All of the applicable information submitted on an employer’s 300A form, including:
  • Annual average employees
  • Total hours worked
  • Number of injuries and illnesses
  • Total deaths
  • Total cases resulting in days away from work and number of days away
  • Total cases resulting in job transfer or restriction and number of days transferred/restricted
  • Total numbers of injuries, poisonings, respiratory conditions, etc.

In other words, if you submitted data on OSHA’s Injury Tracking Application for CY 2016, 2017, 2018, or 2019 that information is on full display now.

Importantly, unlike OSHA’s Information System (OIS) database (formerly OSHA’s Itegrated Management Information System (IMIS)), which includes detailed inspection information, the E-Recordkeeping database does not require those seeking access to the data to input any sort of identifying information – such as employer name or inspection ID number.  Rather, the e-Recordkeeping data is completely raw, displaying all information for all employers, and it is easily searchable, sortable, exportable, etc.

Although OSHA caveats the data by explicitly stating that:

“[r]ecording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits[,]” it is a given that such data will be taken out of context, distorted, misunderstood, and used against employers by insurance companies, union organizers, competitors, the media, plaintiffs’ attorneys, prospective employees, etc.

Here is how you locate the data on the OSHA website.

• On the main Data and Statistics page on the OSHA website, click on the link for the “Injury Tracking Application” in the middle of the right-hand column under “Establishment Injury and Illness Data”.
• That will take you to a page that provides choices of years to retrieve data for from 2016-2018.  When you click on a specific year, it will automatically download an Excel Spreadsheet with the annual information.
• And here’s an easy-access link to that page with all the data.

When you open the spreadsheet, you can sort it by employer name A-Z.

And now that we have transitioned to a Biden Administration, it would not be surprising to see OSHA revisit the E-Recordkeeping Rule, reinstall the requirement to submit 300 and 301 Level Data, and perhaps even enhance the public’s access to the data OSHA is collecting (e.g., making it available in closer to real time and making the public interface more user friendly).  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 later this week!

For more information about OSHA’s E-Recordkeeping Rule, join us on September 8, 2021 for a webinar: “Update About OSHA’s Electronic Recordkeeping Rule,” which is part of CMC’s 2021 OSHA Webinar Series.