Nine Common Mistakes Employers Make in Preparing, Certifying, and Posting OSHA 300A form

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete, accurate and any deficiencies are corrected. The information will be used to target inspections; therefore, employers should carefully ensure they submit accurate records.

Two important deadlines are approaching. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, https://www.osha.gov/recordkeeping/RKforms.html must be posted where notices are customarily located in workplaces, no later than February 1, 2021, and kept in place until April 30. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300.

The second important date is March 2 when establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in certain industries
https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.html with historically high rates of occupational injuries and illnesses must submit the Form 300A electronically to OSHA, using the Injury Tracking Application on OSHA’s website. https://www.osha.gov/injuryreporting/index.html There are exceptions, so it’s important to review the criteria https://www.osha.gov/injuryreporting/index.html#clickhere to determine if you must submit. OSHA will begin accepting forms on Jan. 2, 2021.

Dustin Boss, a Certified Risk Architect and Master WorkComp Advisor with Ottawa Kent Insurance and creator of OSHAlogs, notes that the March 2 date in the workers’ comp world is analogous to the April 15 date in the tax world. It’s critical that companies understand their responsibilities and what needs to be reported and what does not, provide complete and accurate information, and meet the deadlines. Failure to do so can lead to tough, wall-to-wall site inspections. Further, this information is available for all to see as OSHA lost a legal battle to keep it confidential. The forms should be completed with the same care and expertise as a tax return and as Certified WorkComp Advisors, we are available to help.

Here are nine common mistakes, as well as one anticipated mistake related to the impact of the pandemic, which employers make in completing Form 300A. OSHA-approved State Plans may have slightly different injury and illness recordkeeping requirements, so be sure to check on your state recordkeeping obligations.

1. Keeping one OSHA log for multiple locations

OSHA defines an establishment as a “single physical location where business is conducted or where services or industrial operations are performed.”
https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.46)

Employers must keep a separate OSHA log for each establishment that is expected to be in operation for a year or longer. If a company has operations in different locations, each of those locations would be required to maintain a OSHA 300 log, post the 300A Summary, and complete the accompanying 301 Incident Reports (or equivalent forms) if they will be in operation for a year or longer.

For employees who telecommute from home, the employee’s home is not a business establishment and a separate 300 Log is not required. Employees who telecommute must be linked to one of your establishments.

2. Not properly certifying the log

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive,” which is defined as:

• An owner of the company (only if the company is a sole proprietorship or partnership);
• An officer of the corporation;
• The highest-ranking company official working at the establishment; or
• The immediate supervisor of the highest-ranking company official working at the establishment.

The executive is certifying that they have reviewed the information and reasonably believe that it is complete and accurate.

3. Believing all Workers’ Compensation cases are recordable

Deciphering OSHA’s recordkeeping rules to determine if an employee’s injury or illness is recordable is challenging. The requirements and definitions differ significantly from those established under state workers’ compensation laws and, while there may be some overlap, some cases may be one and not the other.

It is important to only record and report those injuries that are required under the regulation, which requires an employer must record a work-related injury or illness if it results in one or more of the following:

1. Death
2. Days away from work
3. Restricted work
4. Transfer to another job
5. Medical treatment beyond first aid
6. Loss of consciousness
7. Diagnosis by a physician or healthcare professional of a significant injury or illness

OSHA’s recordkeeping page, https://www.osha.gov/recordkeeping/, provides more detail.

4. Not recording temporary workers’ injuries

OSHA makes it clear that a recordable injury or illness of a temporary worker should be entered on the hiring employer’s OSHA 300 log if the company performs day-to-day supervision of the worker. If that is the case, the staffing firm should not record the case.

5. Counting the day of the injury as days away case

An OSHA recordkeeping FAQ https://www.osha.gov/recordkeeping/faqs/1904_7_preamble.html explains that the employer is not to count the day of the injury or illness as a day away but is to begin counting days away on the following day. Thus, even though an injury or illness may result in some loss of time on the day of the injurious event or exposure because, for example, the employee seeks treatment or is sent home, the case is not considered a days-away-from-work case unless the employee does not work on at least one subsequent day because of the injury or illness. The employer is to begin counting days away on the day following the injury or onset of illness.

6. Failing to post the 300A Form when there were no recordable injuries or illnesses

OSHA’s recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in “a conspicuous place or places where notices to employees are customarily posted” and it must not be altered, defaced, or covered by other material. When there are no recordable injuries or illnesses OSHA regulations still require employers to complete the 300A form by inputting establishment and employment information then entering zeroes into each column related to the number of injuries and day counts, and post it for three months, through April 30.

While copies should be made available to any employee who might not see the summary (such as a remote workers), it’s important to note that posting the summary form electronically for all employees to review does not satisfy the posting requirements.

https://www.osha.gov/laws-regs/standardinterpretations/2014-02-28-0

7. Failing to maintain the certified log for five years

While employers may take down the Form 300A after April 30, they are required to maintain the underlying OSHA 300 log, the certified 300A Annual Summary Form, and any corresponding 301 Incident Report forms for five years. During a workplace safety and health inspection, employers must provide the records within four business hours. It is one of the first things an inspector will ask for and the ability to respond can set the tone for the rest of the inspection.

Today many employers use electronic systems to prepare and store the forms. An unsigned form will not satisfy the requirement that the form is certified, therefore, it’s important to have proof of the certified form.

8. Failing to update logs from the previous four years

During the five-year retention period, employers must update the 300 Logs to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, employers must remove or line out the original entry and enter the new information. This requirement applies only to the 300 logs; there is no duty to update 300A forms or OSHA 301 Incident Reports. When filing this year, be sure to update your 2016, 2017, 2018, and 2019 logs.

9. Failing to electronically file

OSHA is well aware that not all employers are meeting the electronic filing requirements and under the Trump administration issued Interim Enforcement Procedures for Failure to Submit Electronic Illness and Injury Records directing inspectors to seek evidence, when conducting any inspection, of whether the employer had met its electronic filing requirement. If not, they were to issue an other-than-serious citation, with a potential penalty of $13,494.

It has also taken a “stick” approach in its recently updated Site-Specific Targeting Program (SST), which addresses non-responders. “OSHA will generate a random sample of establishments that failed to provide the required Form 300A data to OSHA for CY 2017-2019. Inclusion of these non-responding employers is intended to discourage employers from not complying with their obligation to report injury and illness information in an attempt to avoid inspection.”

It’s expected that the Biden administration’s enforcement will be even more aggressive. SST inspections are daunting, comprehensive, wall-to-wall inspections. With civil penalties for OSHA penalties now topping out well into the six-figure range, employers must do all they can to ensure compliance with safety data recordkeeping and reporting.

Anticipated mistake: Not getting COVID-19 reporting right

The regulations around recording and reporting COVID-19 illnesses have gone through a series of iterations at OSHA. The current regulations require all covered employers to record COVID-19 cases on their OSHA 300 log if:

• the case is a confirmed case of COVID-19, per CDC guidelines;
• the case is work-related, per relevant OSHA regulations; and
• the case involves at least one of the general recording criteria, per relevant OSHA regulations (g., fatality, loss of consciousness, days away from work, restricted work, transfer to another job, medical treatment beyond first aid).

However, many employers are getting it wrong as evidenced by the citations being issued. Since the start of the pandemic through Dec. 17, OSHA has issued $3.7 million in penalties from 278 inspections and many of these citations included violations for failure to report injuries, illnesses, or fatalities, and failure to record injuries or illness.