Hardhats hung up in line.

On April 7, 2023, the Occupational Safety and Health Administration (OSHA) submitted its latest injury and illness recordkeeping proposal to the Office of Information and Regulatory Affairs (OIRA). The proposed changes to the injury and illness recordkeeping rules hark back to the agency’s more onerous 2016 regulation, which required employers with 250 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301, and 300A once a year. The proposal seeks to expand the number of employers that would be required to submit data by lowering the threshold number from 250 employees to 100 employees (albeit with a caveat). Further, the proposed rule expands the list of covered “high-hazard” industries.

The current requirement is that all establishments with 250 or more employees and those with 20 or more employees in certain high-hazard industries must electronically submit their OSHA Form 300A summary annually. This would be replaced with a lower threshold of establishments with 100 or more employees, but would be limited to an expanded list of “high-hazard industries,” as reflected in Appendix B. Those high-hazard industry employers would be required to annually submit, via OSHA’s electronic portal (the “Injury Tracking Application”), the data from their OSHA Form 300, OSHA Form 301 Incident Reports, and OSHA Form 300A annual summaries.

And it doesn’t end there. OSHA further proposes in a separate, but greatly expanded, list of high-hazard industries—see Proposed Appendix A— that establishments with 20 or more employees will still be required to electronically submit information only from their OSHA Form 300A annual summaries.

And finally, all submitting establishments would be required to include their proper legal company names (rather than “dba” or other short-form descriptors). OSHA also notes that it “intends to post the data from the proposed annual electronic submission requirement on a public website.”

The timeline for OIRA’s review process is hard to predict. It can take as little as a week or two, or drag out for months. This is the last step, however, before finalization of the rule. It appears that OSHA will meet the June 2023 deadline to which it had committed in a lawsuit brought in the U.S. Court of Appeals for the District of Columbia Circuit by organizations representing labor challenging the Trump administration’s rollback of the 2016 regulation’s more onerous e-recordkeeping requirement. (See State of New Jersey v. Walsh.) OIRA often takes comments from stakeholders on proposed rules pursuant to Executive Order 12866.

Ogletree Deakins’ Workplace Safety and Health practice group will continue to monitor developments with respect to the injury and illness recordkeeping final rule and will post updates on the Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.


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