On March 28, 2022, OSHA issued a press release notifying the public that OSHA is proposing significant changes to its injury reporting protocol. These changes impact the occupational and recordkeeping requirements found in 29 CFR 1904.41.

OSHA recently posted the notice of the proposed changes on its website, seeking public comment.  The highlights of some of the proposed changes include:

• • Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A once a year.
  • Update the system used to determine industries subject to the submission requirement.
  • Remove the requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from Form 300A annually.
  • And most importantly, the posting of the reported injuries from the annual electronic submission requirement on a public website (OSHA will remove information that reasonably identifies individuals directly such as names and contact information).

These new changes would improve OSHA’s ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk. The proposed rule would also advance the Agency’s mission to empower workers by increasing transparency in the workforce.

With these proposed changes, the following should be considered and accounted for by employers:

• • Increased visibility on high hazard occupations
  • Increased scrutiny by OSHA on workplaces that might not normally received such attention
  • The information would be available under the Freedom of Information Act to the general public.
  • Extra due diligence will need to be taken when Form 301A, 300 and 300A summaries.
  • OSHA will have recordkeeping data showing “what” injuries are occurring in the workplace but also “how” those injuries are occurring
  • The data collected will allow OSHA to focus its Emphasis Program inspections on establishments with specific hazards.

Employers will want to clarify its classification with OSHA, but the following list is a quick reference of industries that would be affected by the new OSHA proposal. We have Italicized the industries most closely involved in the construction process.  If an employer has establishments with a primary function that shows up in these categories, and those locations have 100 or more employees, the proposed regulation change will affect those locations, and their data will be made public assuming the proposed standard is fully adopted:

• • Forestry, lumber, and building materials
  • Warehousing
  • Several different types of manufacturers, including architectural and structural metals
  • Food processing and manufacturing
  • Plastic products manufacturing
  • Building foundation and exterior construction
  • Seafood product preparation and packaging
  • Machine shops
  • Wholesalers of many types
  • Stores of various kinds, including grocery stores, department stores, and general merchandise
  • Air transportation
  • Hospitals and healthcare of various types
  • Long-term and assisted care
  • Special food services (delivered and prepared in trucks or onsite)
  • Multiple types of hospitality operations
  • Beverage manufacturing
  • Motor vehicle, body, and trailer manufacturing
  • Automotive part sales of different types

With the increased reporting and proposed changes to the recordkeeping requirements by OSHA, as an employer, you will want to verify the proper NAICS code for each location within your business. While this has always been important, it may prove to be even more so going forward. Choosing the wrong NAICS code could cost an employer time and money by requiring additional data collection and entry when it is unnecessary, or it could provide a situation where your establishment does not fit correctly into the BLS data available for the NAICS code selected.

When choosing an NAICS code for each establishment, the primary activity of an establishment is the main factor on which to base that decision. The “primary activity” is defined by the Census Bureau as a revenue-determined number, but employers sometimes consider hours worked and employee count dedicated to each activity at each establishment. The Census Bureau has a NAICS research tool to help with this process.

If employers have concern about the proposed changes, you have the opportunity to provide comments up to May 31, 2022. Please visit the following website for comment on the proposed changes https://www.regulations.gov/document/OSHA-2021-0006-0006.

If you would like to consult with an attorney on these OSHA requirements, compliance, eligibility of the requirements, and/or a review of your company’s injury and reporting protocol and/or on any projects on which you work, the attorneys in our Austin and Dallas offices are available to answer any questions you may have.   Please contact us at info@gstexlaw.com.

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