By Amanda R. Strainis-Walker and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group

This is your annual reminder about the important annual 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 for the set of low hazard industries exempted 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 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal.  Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.

By February 1^st every year, 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.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty:

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; and
4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded.

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.

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 30^th.

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.

Maintaining 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.

Finally, 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.

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 new Electronic Recordkeeping Rule.  The deadline in 2018 for employers to electronically share data from their 2017 300A forms with OSHA is currently set for July 1, 2018, but the rule itself may change, and so too may that July deadline.  OSHA has signaled through status reports in a federal district court proceeding and in its semi-annual regulatory agenda that it is working on a Notice of Proposed Rulemaking to reopen the E-Recordkeeping Rule and change it or rescind it.  The most likely changes we predict are limiting the data that will be required to be submitted to only 300A Annual Summary data, rather than the full panoply of recordkeeping data, regardless of the size of the employer, and perhaps some other changes to limit the set of employers covered by the rule.  Here are a few articles we have written about OSHA’s E-Recordkeeping Rule.

Accordingly, although the web portal is now accepting 2017 data, we encourage employers to wait until close to the July deadline to submit data, because the rule itself may change and the deadline may be pushed to allow more time for OSHA to change the rule.