By Brent I. Clark, James L. CurtisAdam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: As we previously blogged, the federal Occupational Safety and Health Administration issued a notice of proposed rulemaking to expand requirements for employers to submit OSHA forms via its Injury Tracking Application (ITA). Now the agency has issued enforcement guidance instructing OSHA how to identify and enforce potential violations of the OSHA rule requiring electronic submittal of injury and illness records.

In an apparent attempt to make it easier for each OSHA Area Office to identify covered employers who have not submitted OSHA 300A yearly summaries to OSHA’s ITA within the required timeframe, the Directors of OSHA’s Directorate of Technical Support and Emergency Management and Directorate of Enforcement Programs issued enforcement guidance for OSHA Regional Administrators on April 4, 2022. According to the guidance,

[e]ach week, the Directorate of Technical Support and Emergency Management, Office of Statistical Analysis (OSA) will run an OIS Scan Summary Report of inspections opened during the previous week and not yet closed. OSA will match the open inspections list against a list of establishments that may have failed to submit their CY 2021 Form 300A data to create a list of potential non-responders by area office. OSA will send the weekly Area Office Potential Matches Report to the Regional Coordinators for distribution.

OSHA Area Offices are directed to review their weekly list to verify whether facilities with ongoing inspections meet the criteria for reporting through ITA. Where the inspected facility is required to report, “the CSHO shall inform the employer of their reporting obligation and follow the enforcement procedures in the May 6, 2021, memorandum Enforcement Procedures for Failure to Submit Electronic Illness & Injury Records under 29 CFR 1904.41(a)(1) & (a)(2).”  This move toward automation takes the burden to identify allegedly non-compliant employers off of OSHA inspectors, and arms CSHOs with information to issue citations for employer failure to report through the ITA.

The data for calendar year 2021 had to be submitted to OSHA by March 2, 2022, so the six-month date to issue a citation for non-compliance with the requirements of 29 CFR 1904.41 is September 2, 2022.

We blogged previously on OSHA’s reporting enforcement efforts and the real consequences that can face employers for non-compliance. See OSHA To Post Employer Injury Data Online, Will Require Employers to Submit Logs Electronically, and False Injury Logs Can Do More Than Lead to OSHA Citations: Safety Manager Sentenced to 78 Months in Prison for Major Fraud.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.