OSHA’s Final Rule

OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule history

Back in 2016, after three years from proposal to final rule announcement, OSHA introduced a new Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” by implementing requirements for employers meeting certain requirements to report their 300A, Summary of Work-Related Injuries and Illnesses. The rule aimed to improve the tracking of workplace injuries and illnesses by requiring certain employers to electronically submit their injury and illness data to OSHA. Covered employers were required to submit their data through the Injury Tracking Application (ITA) on OSHA's website.

Despite all these challenges, changes, and rulemaking pushback, on July 17, 2023, OSHA finally accomplished what most expected not to happen, a Final Rule which amended its regulation as follows:

• Establishments with 100 or more employees in certain high-hazard industries must electronically submit information from their Form 300-Log of Work-Related Injuries and Illnesses, and Form 301-Injury and Illness Incident Report to OSHA once a year. These submissions are in addition to submission of Form 300A-Summary of Work-Related Injuries and Illnesses.
• To improve data quality, establishments are required to include their legal company name when making electronic submissions to OSHA from their injury and illness records.

OSHA will publish some of the data collected on its website to allow employers, employees, potential employees, employee representatives, current and potential customers, researchers, and the general public to use information about a company’s workplace safety and health record to make informed decisions.

To overcome most privacy challenges, OSHA established under the new rule that it will not collect employee names or addresses, names of health care professionals, or names and addresses of facilities where treatment was provided if treatment was provided away from the worksite from the Forms 300 and 301. The rule goes into effect January 1, 2024.

Impact:

The significance of OSHA's Final Rule to Improve Tracking of Workplace Injuries and Illnesses may be overlooked by employers if they fail to fully understand the implications of the rule or neglect to consider the purpose and utilization of the data, including how it affects relevant National Emphasis Programs (NEPs) issued by OSHA, and the Severe Violator Enforcement Program (SVEP). The initial impact of the rule might not appear significant at first glance. However, a deeper understanding is crucial to recognize the potential consequences of non-compliance and the importance of accurate data reporting. Employers who disregard or underestimate the rule's requirements may face penalties, reputational damage, and other enforcement actions from OSHA.

The National Emphasis Program

The new OSHA injury and illness reporting requirement, in conjunction with the National Emphasis Program (NEP), can have specific implications for employers operating in high-risk industries. Here is a summary of how you may be affected:

Risk

Increased OSHA scrutiny:

• Employers operating in high-risk industries targeted by the NEP may face increased OSHA scrutiny due to the new injury and illness reporting requirement.
• OSHA is likely to focus more attention on industries with historically high injury and illness rates, leading to more frequent inspections and enforcement actions for non-compliance.
• Employers in these high-risk industries should be prepared for enhanced OSHA oversight, ensuring their safety programs and reporting systems meet or exceed regulatory standards.

Mandatory compliance:

• Employers operating in high-risk industries must ensure strict compliance with the new reporting requirement to meet OSHA's expectations.
• Accurate and timely reporting of workplace injuries and illnesses is crucial for those in these industries, as it demonstrates a commitment to transparency and safety management.
• Failure to comply with the reporting requirement may result in citations, penalties, and a damaged reputation, potentially affecting business operations and relationships with stakeholders.

Management of risk

Proactive risk management:

• Employers in high-risk industries should adopt proactive risk management practices to minimize workplace incidents and maintain compliance with the reporting requirement.
• Implementing comprehensive safety programs, conducting regular hazard assessments, and providing appropriate training are essential to mitigating risks effectively.
• By demonstrating a strong commitment to safety and proactive risk management, you can minimize the likelihood of OSHA inspections and enforcement actions.

Opportunity for improvement:

• The new reporting requirement presents an opportunity for employers in high-risk industries to assess and improve their safety performance.
• By accurately reporting injuries and illnesses, employers can identify trends, root causes, and areas for improvement, enabling them to implement targeted safety measures.
• Taking a proactive approach to safety improvement not only aligns with OSHA requirements but also enhances worker well-being, reduces costs associated with incidents (including claims), and strengthens the client's overall reputation.

Competitive considerations:

• Employers operating in high-risk industries with strong safety records and robust reporting systems can gain a competitive edge.
• Demonstrating a commitment to worker safety and compliance can enhance your reputation, attract safety-conscious customers, and differentiate them from competitors.
• Employers with a proactive safety culture and effective risk management practices are better positioned to secure business opportunities and maintain long-term success.

Severe Violator Enforcement Program

The new OSHA injury and illness reporting requirement can have implications for OSHA's Severe Violator Enforcement Program (SVEP). Here is a summary of how the SVEP may be affected:

Risk

Identification of severe violators:

• The enhanced injury and illness reporting requirement provides OSHA with more comprehensive data on workplace incidents, enabling them to identify employers with severe violations more effectively.
• OSHA's SVEP targets employers who have demonstrated a pattern of severe violations or disregard for workplace safety regulations.
• With increased access to injury and illness data, OSHA may be better equipped to identify and categorize employers as severe violators under the SVEP.

Enhanced scrutiny and enforcement:

• Employers identified as severe violators under the SVEP face enhanced scrutiny and enforcement actions from OSHA.
• The SVEP can result in more frequent inspections, closer examination of safety practices, and increased penalties for non-compliance.
• With the expanded reporting requirement, employers with poor safety records or multiple severe violations may face a higher likelihood of inclusion in the SVEP and subsequent enforcement actions.

Reputational impact:

• Employers included in the SVEP may experience reputational damage due to their identification as severe violators.
• Being designated as a severe violator can negatively impact the employer's brand image, public perception, and relationships with stakeholders.
• Reputational repercussions may lead to diminished trust, difficulties in attracting top talent, and potential loss of business opportunities.

Compliance obligations

• Employers targeted by the SVEP must meet stringent compliance obligations to address severe violations and improve workplace safety.
• Compliance with corrective actions, such as implementing comprehensive safety programs or addressing identified hazards, is crucial to resolving SVEP-related issues.
• Failure to comply with SVEP requirements may result in continued scrutiny, increased penalties, and potential legal consequences.

Management of risk

Path to removal:

• Employers included in the SVEP can be removed from the program through demonstrated improvements in safety performance.
• Employers must actively work to correct identified deficiencies, maintain compliance with safety regulations, and showcase sustained commitment to worker safety.
• Meeting the requirements for removal from the SVEP is essential to restoring the employer's reputation, mitigating the impact on business operations, and rebuilding relationships with stakeholders.

Bottom Line

Employers operating in high-risk industries targeted by the NEP should pay careful attention to the new OSHA injury and illness reporting requirement. Proactive compliance, robust safety programs, and effective risk management are essential for navigating potential increased OSHA scrutiny. By embracing these measures, employers can improve safety performance, minimize risks, and enhance their competitive position in the market.

The new OSHA injury and illness reporting requirement can also influence OSHA's Severe Violator Enforcement Program (SVEP). Employers with poor safety records, multiple severe violations, or a pattern of non-compliance may face enhanced scrutiny and enforcement actions. Compliance with SVEP obligations, proactive safety measures, and demonstrable improvements in safety performance are crucial for employers to address severe violations, mitigate reputational damage, and restore trust with OSHA and stakeholders.

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).