New Year Ushers in Work Safety Disclosures for 52,000 Employers

More than 52,000 employers must start complying with a new OSHA rule in 2024 that mandates workplaces in industries with high injury and illness rates and 100 or more workers provide the agency the details annually of every significant incident at the work site.

Much of the information provided will be posted on the US Occupational Safety and Health Administration’s public website, a move that’s been criticized by employers that have said the rule exposes them to unfair allegations of having dangerous workplaces.

For its part, OSHA sees the new requirements as a gateway to learning what safety problems lead to bigger mishaps and enabling the agency to better focus inspections on employers with truly problematic practices.

“We’ve been really sensitive to placing additional burdens on businesses and made a concerted effort to make it as easy as possible for employers,” said Lee Anne Jillings, chief of OSHA’s Directorate of Technical Support, which is overseeing implementation of data collection.

The agency anticipates employers will file about 766,000 injury and illness reports in total covering 2023.

Interpretation Matters

“The fact of a recordable injury—standing alone—says absolutely nothing about the employer’s safety culture or OSHA citation history,” said Susan Wiltsie, a partner with Hunton Andrews Kurth in Washington, who often represents employers.

Before the rule was issued in July, OSHA generally mandated employers record—but not always report—any work-related injury or illness that required more than first aid treatment or resulted in a worker missing a day or more of their job.

Since 2016, OSHA has required hundreds or thousands of establishments to annually provide one-page summaries of all injuries and illnesses through Form 300A. Following several federal court orders declaring that the forms are a public record, OSHA began posting the data.

The data from the 300A summaries didn’t provide information on each case, a gap OSHA expects the new rule to partially fill.

Safety researchers, news organizations, and unions delved into the disclosed numbers, with results that included numerous critical reports about high-profile employers such as Amazon.com Inc. and Tesla Inc.

Attorney Eric Conn, chair of Conn Maciel Carey LLP’s workplace safety practice group, said employers are also concerned about the filing process itself under the new reporting rule.

OSHA issued the rule in July, even though it applies to records created as far back as January 2023, Conn said. That means employers must take months of accident reports and convert them into a format that can be electronically submitted to OSHA by March 2, 2024.

“OSHA thinks it is not a big deal, but it is a lot of time and effort,” he said.

Filing Nuts and Bolts

Jillings said OSHA is easing compliance by issuing documentation on technical requirements for a new filing system—officially called the Injury Tracking Application (ITA).

“We’ve done extensive internal beta testing as well as had volunteer ITA users from companies take part in the testing process as well,” Jillings said.

When an employer’s report is submitted, the system will notify filers of possible errors, she added.

A first step for employers to comply with the rule may be finding out if the mandate applies to them. OSHA has set up a website where anyone, by answering five questions about an establishment, can determine if the business must file a report, Jillings said.

The application portal continues to be updated, with the final version online in time for the Jan. 2 opening day of filing, she said. Prior to that date, would-be submitters can check out a “preview environment” where they are able to test the new system without submitting their data.

OSHA has also posted written instructions online and videos on the agency’s YouTube channel, Jillings said. There will also be webinars and other outreach by OSHA’s field offices.

Conn said employers shouldn’t be in a rush to file. He said they should wait until closer to the March 2 submission deadline to avoid possible early technical problems with the portal.

Numbers, Not Names

Employers also have concerns that workers’ privacy could be violated by detailing accidents and injuries, although some personal identifying information won’t collected by OSHA.

OSHA’s filing system won’t collect workers’ names, addresses, or medical providers, Jillings said. The agency also issued a written guide covering filing privacy concerns.

While OSHA will collect birth dates, those dates will automatically be converted into the worker’s age and not released. And, while the form asks for the worker’s gender, employers aren’t required to answer.

When OSHA makes the reports public, the information won’t include the worker’s age, gender, date hired, or whether the worker was hospitalized or treated in an emergency room.

The data collected by OSHA—minus the personally identifiable information—will be downloadable on OSHA’s website.

Wiltsie and Conn said they continue to have privacy concerns with OSHA’s requirements to provide details about each incident, such as what actions led to an injury, the accident itself, and the injury.

“Even without submitting the name, address, and health-care provider, the identity of the individual can be discerned in some cases, particularly in small communities where people know each other,” Wiltsie said.

OSHA’s privacy guidance says that when an employer describes an incident, the entry shouldn’t include information that could “reasonably be expected” to identify a worker. That puts employers in the quandary of protecting privacy while still complying with the requirement to describe what happened, Conn said.

The 29 states and other jurisdictions with their own federally approved worker safety programs are required by OSHA to set up reporting mandates that are identical or similar to the federal plan, Jillings said.

As of Dec. 20, 21 states—including California, Indiana, Michigan, and Tennessee—and Puerto Rico had notified OSHA they were adopting the federal standard. Connecticut and Oregon told OSHA they would adopt their own rules.

The other states have until mid-January to inform OSHA of their plans.

Rather than setting up their own submission portals, the state plans will be able to use federal OSHA’s website, Jillings said.