Employers Reminded to Post and Electronically File 300A Forms (Article Updated 1/25/19: Final Rule Published by OSHA)

Employers Reminded to Post and Electronically File 300A Forms (Article Updated 1/25/19: Final Rule Published by OSHA)

South Dakota Retailers Association  

Reminder for employers who are required to maintain work-related injury and illness records:

Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

Prior to posting, a company executive must review the OSHA 300A and certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following: 

  1. an owner of the company (only if the company is a sole proprietorship or partnership);
  2. an officer of the corporation;
  3. the highest ranking company official working at the establishment; or
  4. the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required.  Employers should take steps now to ensure they are fully compliant.

Additionally, for those employers covered by OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, this year the electronic submission of each establishment’s 2018 300A Annual Summary is required to be filed no later than March 2, 2019 using the Injury Tracking Application on OSHA’s website.  This date differs from past years as the phase in period for the regulation comes to an end.  For each year hereafter, the 300A will be required to be electronically filed no later than March 2.

Since last year OSHA  has also required those employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements to submit their 300A Forms.  Although the agency has acknowledged that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and can not issue citations to employers for failing to electronically submit the 300A, and since those certain state plans have yet to adopt the regulation they are equally prohibited from enforcing the requirement and can not issue citations to employers. Be sure to check with your state plan to determine whether they have fully adopted the new requirements.

More information, including a section on Frequently Asked Questions, on the electronic submission of the 300A Forms can be found on OSHA’s website.

JANUARY 25, 2019 UPDATE

On January 24, 2019, OSHA published the final rule revising the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration.  The final rule aligns with the proposed rule and rescinds the requirements for establishments with 250 or more employees to electronically file information from OSHA Forms 300 and 301. As is currently the requirement, these establishments will continue to submit information from their Form 300A.  The final rule now requires all covered employers to electronically file submit through OSHA’s Injury Tracking Application (ITA) only the 300A Form.

In the final rule, OSHA emphasized,

"Elimination of the requirement that establishments with 250 or more employees submit information electronically from their OSHA Forms 300 and 301 – a requirement that has not yet been enforced – does not change any employer’s obligation to complete and retain injury and illness records under OSHA’s regulations for recording and reporting occupational injuries and illnesses. The final rule also does not add to or change the recording criteria or definitions for these records."

The agency received 1,880 comments to the proposed rule and some commenters expressed concerns over the possible publication of the electronic information submitted to OSHA.  In response, OSHA stated that “…the agency takes the position that these data are exempt from public disclosure under FOIA.”  Other commenters raised concerns over the application of the regulation to employer drug testing and incentive programs.  OSHA made clear that the regulation does not ban drug testing or prohibit incident-based incentive programs.  OSHA stated that Section 1904.35(b)(1)(iv) of the regulation

"…merely prohibits employers from implementing these programs to penalize workers “for reporting a work-related injury or illness.” Id. (emphasis added). On October 11, 2018, OSHA issued a memorandum that explained this regulatory text and OSHA’s position on workplace incentive programs and post-incident drug testing. See U.S. Dep’t of Labor, Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR § 1904.35(b)(1)(iv) (Oct. 11, 2018)."

Additionally, under the final rule OSHA is amending the regulation to require covered employers to submit their Employer Identification Number (EIN) electronically along as part of their submission to the agency. According to OSHA, “many commenters agreed with OSHA that collection of the EIN would enhance the utility of the data and therefore improve worker safety and health. Several commenters provided specific examples of how the EIN can be used by OSHA for research purposes, such as identifying employers with patterns of injuries…and matching against other databases that contain the EIN to add characteristics to the data….”

The regulation now requires that for each establishment that is subject to the electronic filing requirements, the employer must provide the EIN used by the establishment.  The compliance  date for employers providing their EIN is March 2, 2020.  So, for the 2018 300A submissions that are due to be electronically filed no later than March 2, 2019 the EIN information will not be required.  Beginning March 2, 2020, OSHA will require employers to provide the EIN for each establishment filing the 2019 300A Form.

While these revisions are generally supported by employers, not all interested parties support the revisions to the Obama era regulation.  Some labor groups have raised the concern that since the review and approval of this final rule by the Office of Information and Regulatory Affairs (OIRA) occurred on January 18, 2019 it was conducted during the government shutdown when OIRA lacked funding.  And, since OIRA is funded from the Treasury and General Government Appropriations, which has not been appropriated by Congress, it violated the Antideficiency Act, which prohibits the government from spending if funds have not been appropriated by Congress.  It is unclear whether any party will take legal action, but it seems to be something considered by those who oppose the revisions to the regulation.

Information courtesy Jackson Lewis, PC

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