Posting and Reporting Form 300A Summary and Increased Penalties are on the Way!!

Employers: OSHA continues to be one of the most active governmental agencies with significantly increased reporting and citations/violations. Due to recent changes, your organization may be responsible for electronically reporting injury and illness data directly to the Occupational Safety and Health Administration (“OSHA”) if your establishment meets certain size and industry criteria.

If your establishment employs 20 or more employees, you will have to consider whether or not you must electronically submit your 300A Form. The easiest way to do this is to use OSHA’s ITA Coverage Application tool to determine whether or not your establishment is required to electronically report the injury/illness information to OSHA. Generally, if your establishment employs less than 20 employees and/or it is on OSHA’s list of low risk establishments, no reporting is necessary. However, if your establishment is not on this list and it employs 250 or more employees, reporting will be required. Finally, if your establishment employs at least 20 employees and less than 250 employees, reporting will be necessary only if the establishment ison the list of industries with historically high rates of occupational injuries and illnesses.

Establishments have to submit the required information by March 2 of the year after the calendar year covered by the forms (for example, by March 2, 2023 for the forms covering calendar year 2022). If the establishment does not submit this information by the March 2 deadline, it must still report their Form 300A data through the Injury Tracking Application and can do so until December 31. OSHA has been citing employers for failing to properly file their 300A form.

Furthermore, the Form 300, 301, and 300A records must be maintained at the worksite for at least five (5) years, and each year from February 1 through April 30, employers must post a summary of the injuries and illnesses recorded the previous year. Also, if requested, copies of the records must be provided to current and former employees, or their representatives.

Updates to OSHA Penalties and “Instance-By-Instance” Citations

OSHA recently released the maximum penalty amounts with annual adjustments for inflation. The penalties became assessable on January 15, 2023. The schedule for maximum penalties is as follows: for Serious, Other-Than-Serious, and Posting Requirement violations, the maximum penalty is increased from $14,502 per violation to $15,625 per violation; for Failure to Abate, the maximum penalty is increased from $14,502 per day to $15,625 per day beyond the abatement date, and; for Willful or Repeated violations the maximum penalty is increased from $140,027 to $156,259 per violation.

Employers also should be made aware of OSHA’s January 26 press release covering a significant change in long-standing policy regarding penalties. The U.S. Department of Labor announced that OSHA is going to issue new enforcement guidance to make penalties more severe in order to increase deterrence and promote stricter compliance with OSHA policy. OSHA Directors will now have the authority to cite certain types of violations as “instance-by-instance citations” when the agency identifies “high-gravity” serious violations of OSHA standards for certain conditions, whereas prior to this policy, instance-by-instance citations were limited to “egregious willful citations.” These less severe “high-gravity” conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and for cases with other-than-serious violations specific to recordkeeping.

In a subsequently filed enforcement memorandum, OSHA reminded its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act. For example, in the past, if OSHA saw multiple workers on an elevated surface without proper fall protection, the employer would be cited and ordered to pay one penalty for all the workers. The policy change will allow OSHA to impose a penalty for each worker they see in violation of the OSHA standards, thereby increasing the penalty amount considerably.

If you have any questions about this article or how to protect your organization from OSHA’s new policies, please contact Seth Briskin, Lester Armstrong, David Smith, Steven Dlott, or Joe Pokorny at 216-831-0042.