Yesterday (July 30), OSHA published a proposed rule to amend its Injury & Illness Record-keeping standard, 29 CFR Part 1904. OSHA proposes two significant changes that address long-standing industry concerns.

  1. For employers with 250 or more employees, OSHA would rescind the requirement to electronically submit information from the more detailed OSHA Forms 300 and 301. Only annual summary data, showing aggregate injuries for the year, would be collected electronically.
  2. The deadline for electronic submittal of those forms – July 1, 2018 – will not be enforced by OSHA without further notice while the proposed rule is under consideration. (Since the deadline to submit comments on the proposed rule is September 28, 2018, it is unlikely that OSHA will set a new deadline prior to December 1, 2018, and if the proposed rule becomes a final rule, no deadline will apply.)

Electronic reporting: It’s just a brief history.

The requirement that OSHA seeks to undo has not existed long. On May 12, 2016, OSHA amended its Injury & Illness (“I&I”) Record-keeping standard to require electronic reporting under certain circumstances. Employers with 250 or more employees in industries that are routinely required to keep I&I records became obligated to submit information from their OSHA 300, 300A and 301 Logs, electronically, to the agency.

The first deadline applied to the annual summary forms (300A Logs), to be submitted by July 1, 2017. OSHA subsequently extended that deadline to December 15, 2017.

A second round of electronic reporting was slated to begin on July 1, 2018. Again, the reporting applied to employers with 250 or more employees in industries that are routinely required to keep I&I records. The second reporting obligation applied to information from the 300 and 301 Logs. This second reporting obligation is the focus of OSHA’s proposed rule.

Why is OSHA reconsidering the mandate to submit information from 300 and 301 Logs?

According to the July 30th Federal Register notice, OSHA now acknowledges that some of the information which would be electronically submitted is sensitive information. For example, employers would be submitting descriptions of injuries, body parts affected by injuries, the identities of hospitals which treated the employees, dates of birth, and an explanation of the injuries.

According to OSHA, this may significantly increase the risk to worker privacy. Employers have long been concerned about these privacy issues, as well as the lack of context for this data should OSHA publish the data online as it once intended to or should a court order release of the data under the Freedom of Information Act (at least one lawsuit is pending that seeks publication of the electronic records).

What portions of the electronic I&I submittal rule remain in effect?

OSHA 300A Logs, which summarize a year’s worth of injuries and illnesses without specifically identifying each instance, must still be submitted by employers in the following categories: (1) those having 250 or more employees in industries that are routinely required to keep I&I records; (2) those with 20 to 249 employees in certain designated industries (see 28 CFR 1904.41 Appendix A for the list of designated industries); and (3) employers who have been notified by OSHA to electronically submit such data, regardless of their size.

The rule does not change who must keep these records; it only changes who must submit them to OSHA. Employers required to keep such records still would be required to produce them to OSHA upon request. In practice, though, this is a vastly smaller number of companies, as OSHA typically requests such data only for particular reasons, such as based on specific complaints or incidents.

What should I do now?

First, if you did not submit data yet by the July 1, 2018 deadline for whatever reason, you might decide to hold off on doing so while the rulemaking is pending. If the rule is finalized as proposed, you may never need to submit.

OSHA says that it “will not enforce this [July 1, 2018] deadline without further notice while this rulemaking is underway.” It does not elaborate on what this means, however, beyond the idea that it will not issue citations for failure to submit during the rulemaking.

The spirit of this statement seems to be a notice that companies need not now rush to comply. But, what if the rulemaking fails to realize the promises of the proposed rule? Will companies that delayed face citations or even willful allegations? Presumably not though OSHA could have been clearer.

Second, you can comment on the proposed changes. The comment deadline is September 28, 2018. Comments may be submitted electronically at

Those who support the changes should ensure that their voices are heard. The Husch Blackwell safety and health law team routinely assists with preparing comments and testimony for rulemakings. If your company or trade association is interested in weighing in or has questions about he process, please contact Brad Hiles or Avi Meyerstein for more information.

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