United States: OSHA's Final Rule On Electronic Tracking Of Workplace Injuries And Illnesses

In keeping with Assistant Secretary of Labor Dr. David Michaels' promise to "shame" employers into compliance, on May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses.1 Under this rule, OSHA will be publishing employer injury and illness records on the internet without any explanation of the facts and circumstances of the particular cases involved. Further, OSHA has changed the requirements for directing employees on reporting injuries and illnesses and assumed new authority to prosecute alleged retaliation against employees for reporting injuries and illnesses. Finally, OSHA takes the position that to ensure injury and illness reporting, employers must notify employees of their rights, and the agency must be able to police any program that might discourage reporting, such as employer safety incentive programs.

What Does the Rule Require?

Electronic Reporting

The new rule provisions on reporting, which take effect on January 1, 2017, require various employers to submit injury and illness data electronically. OSHA is requiring each and every establishment (i.e., each separate workplace) with 250 or more employees in industries covered by the recordkeeping regulation to submit information from their 2016 injury and illness recordkeeping Form 300A by July 1, 2017. The following year, these employers are required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and for every year thereafter, the information must be submitted by March 2. For those employers who utilize an alternative to the OSHA Form 301, such as a workers' compensation first report of injury, as expressly allowed by the existing rules, these changes will in essence require that the employer also complete the OSHA Form 301.

Establishments with 20-249 employees in specified "high-risk industries" – identified on a specific list and including all employers in the agriculture, utilities, construction, and manufacturing industries – must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter. Because the information is kept and must be submitted by each establishment, many companies will be required to submit thousands of reports every year.

Those employers with establishments that are not required to submit records yearly may still be required to submit information upon OSHA's direction. OSHA intends to provide notification of these data collections through direct mailings, publication in the Federal Register, and publication on its website and other notices. It remains to be seen whether these data collections will be part of inspection programs like the former Site Specific Targeting (SST) program.

Employee Involvement

The rule also changes employer obligations for ensuring employees report all work-related injuries and illnesses. Effective 90 days after publication of the rule, on August 10, 2016, employers must establish "a reasonable procedure" for employees to report work-related injuries and illnesses promptly and accurately. The rule does not specify whether this procedure must be in writing, but for practical purposes of proving the existence of the procedure, employers will need to do so. In addition, employers must keep in mind that OSHA is presently litigating a case against U.S. Steel asserting that any program requiring reporting sooner than seven days after the injury or illness is illegal because it would discourage reporting.

As set forth in the new rule, no employer procedure can deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. In its explanation of the rule, OSHA expects this provision will allow it to regulate employer safety incentive programs, which the agency believes interfere with reporting injuries and illnesses.

After establishing the procedure for reporting work-related injuries and illnesses, employers must inform each employee about it. OSHA does not formally call this training or an educational program, but it is clear an employer will need to be able to prove its employees received the information. Specifically, the employer must tell all employees: (A) they have the right to report work-related injuries and illnesses; and (B) a company is prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

Anti-Retaliation Protections

The new rule also expressly prohibits retaliation for reporting a work-related injury or illness. In a new section of regulations, OSHA sets itself up as the arbiter of retaliation through citation enforcement for any employee who files a safety and health complaint, asks for access to the part 1904 injury and illness records, or exercises any rights afforded by the Occupational Safety and Health Act (OSH Act).

Why is the Rule Problematic?

The Rule is Inconsistent with the OSH Act

Nowhere in the OSH Act has Congress authorized OSHA to publicize establishment-specific injury and illness records outside of the employer's own workplace. Although Congress gave the agency limited authority to create reporting requirements, for 40 years such information was provided to OSHA and the employer's own employees only; it was never disseminated to the public. In the proposed rulemaking record, OSHA expressly acknowledged the Confidential Information Protection and Statistical Efficiency Act of 20022 that prohibits the Bureau of Labor Statistics (BLS) from releasing establishment-specific data to the general public. Although the law is in fact applicable only to the BLS, the intent of the law is expressly stated to protect the confidentiality of the information OSHA now proposes to disclose. OSHA does not explain how its release of the information is consistent with the congressional mandate expressed in the law. In other actions, OSHA has argued that this information is confidential and should not be disclosed.3 Although in at least one case OSHA was ordered to disclose the Lost Work Day Illness and Injury (LWDII) rates, the court made no findings regarding disclosure of the actual numbers of cases in distinct categories or the actual number of hours worked, much less specific information on individual injury and illness cases. OSHA asserted that all items were confidential. The new final rule is an open invitation for mischaracterization and misuse of the records in ways Congress never intended.

OSHA is Eliminating Use of Equivalent Forms

OSHA's existing injury and illness recordkeeping rules allow employers to use forms equivalent to the Form 300, Form 301, and Form 300A, so long as same information is recorded.4 Many employers utilize equivalent forms – particularly insurance and accident investigation forms – in place of the Form 301. In requiring electronic reporting in a particular software format, OSHA is mandating the use of a specific form and eliminating the widespread use of equivalent forms by employers. This change has not been identified or evaluated (benefits, or lack thereof) under the Paperwork Reduction Act provisions applicable to this rulemaking. The incremental benefit (if any) of this rule is significantly outweighed by the increased paperwork duplication created by the use of mandatory forms and elimination of equivalent forms.

The Burden of Electronic Submission

OSHA's rule requires employers to adopt an electronic recordkeeping system or to transfer all paper records to electronic format for submission. There is no option for a paper submission for large or small employers. OSHA previously acknowledged that 30% of the establishments responding to the 2010 recordkeeping survey did not submit data electronically.5 By way of explanation, OSHA noted, "for some of the establishments...it is difficult to submit data electronically. Most agencies currently allow non-electronic filing of information, and some businesses continue to use this option, despite strong encouragement by agencies to file electronically."6 That recognition is missing in the final rule.

OSHA further failed to explain how it will establish and maintain a confidential and reliable means of electronic submission by employers. The U.S. government famously failed to implement reliable website access for the Affordable Care Act when that was a major policy initiative with full funding. OSHA has received no additional funding or resources for implementing this new rule.

OSHA is Likely Discouraging Reporting and Recording

Many employers have expressed a legitimate concern that the new rule may discourage recording of cases. Knowing they will be scrutinized on this data by the agency, the public, potential customers, and competitors, and in order to protect their reputation, employers will likely be conservative in analyzing whether to record each and every case in their logs. Putting aside cases involving failure to record covered cases, the inescapable fact is that questionable cases might not be recorded. Further, knowing the impact of their injuries on their employers' ability to secure future work, employees may be incentivized by OSHA's new rule not to report cases to their employer.

The rule might also motivate employees not to report injuries and illnesses in order to protect their own privacy. Employees will recognize that their case will be reported on the internet, and even without their name appearing on OSHA's website, in small towns across America, their neighbors and co-workers will know to whom the entry refers. The overall effect of these changes will be to decrease (not increase) the amount of information on injuries and illnesses available to review and effectively create a safer workplace.

The "Supplemental" Amending of the Whistleblower Provisions

Although not included in OSHA's August 2014 proposed rulemaking, OSHA published a supplemental notice proposing to amend the rule to include a direct prohibition on retaliation. Section 11(c) of the OSH Act sets forth a specific procedure for the investigation of retaliation complaints with a procedure for enforcement through a federal lawsuit filed by the Department of Labor Solicitor's Office. However, section 11(c) does not provide for OSHA to establish a separate enforcement scheme where citations and penalties can be issued, nor does it allow OSHA to proceed without a complaint from an employee. Further, because the proposed rulemaking did not include any regulatory text or analysis of the rulemaking, there is a strong argument that this provision in the final rule has not been enacted properly under the OSHA rulemaking requirements.

Conclusion and Employer Actions

Although there are concerns about the new rule and its enactment will likely result in legal challenges, it is, for the time being, an official and final rule, with its requirements for procedures, employee information, and prohibition on retaliation becoming enforceable on August 10, 2016. Accordingly, employers should consider the following actions:

  • Review and revise procedure for employees to report work-related injuries and illnesses promptly and accurately;
  • Ensure procedures include OSHA's notice of the right to report and the assurance against retaliation;
  • Review and revise how the procedure is communicated to employees and update that communication for any revised procedure; and
  • Review all safety incentive programs to ensure they will not be alleged to deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

Littler Mendelson's Workplace Safety and Health Practice Group will continue to monitor developments under this rule and provide timely updates.


1 OSHA, Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29623 -29694 (May 12, 2016).

2 Pub. Law 107-347 (Dec. 17, 2002).

3 See, e.g., New York Times Co. v. U.S. Dept. of Labor, 340 F.Supp.2d 394 (S.D.N.Y. 2004).

4 29 C.F.R. §§ 1904.29(a), 1904.29(b)(4).

5 78 Fed. Reg. 67254.

6 Id. at 67273.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.