By: Mark A. Lies II and Kerry M. Mohan

As many employers know all too well, the Occupational Safety and Health Administration (“OSHA”) requires them to record work-related injuries and illnesses and to maintain the OSHA 300 Log for five years. Moreover, OSHA requires all employers to report to OSHA certain serious injuries within a short time period. On September 11, 2014, OSHA announced its Final Rule revising the current recordkeeping standard, which will significantly expand the recordkeeping rule’s reach to hundreds of thousands of new employers and place further burdens on employers to report additional workplace injuries and illnesses. Since these new rules become effective on January 1, 2015, employers are being encouraged, but have little time in reality, to modify their practices and prepare for the coming wave of enforcement.

OSHA’s Recordkeeping Regulations

Under OSHA’s recordkeeping regulations, 29 C.F.R. 1904, certain employers with more than 10 employees must record work-related injuries and maintain written records for five (5) years. Those records include the 300 Log, the 301 form, and the 300A annual summary. Though it may sound simple, recordkeeping is not an easy task, as it involves numerous issues including  work-relatedness, the nature and scope of an injury or illness, and the counting of employee days off from work or restricted duty, all of which many times involve analysis of incomplete or conflicting evidence. For instance, an employer may disagree with an employee’s claim that his or her injury or illness is work-related. In such circumstances, the employer must evaluate the employee’s claim to determine whether the injury or illness should be recorded on the OSHA 300 Log or should be found to be non-work-related. If the employer finds that the injury is non-work-related, the employer will have to maintain documentation to support its determination in case OSHA were to challenge that decision.

Thousands Of New Employers Are Now Subject To OSHA’s Recordkeeping Requirement

Under OSHA’s current rule, employers with 10 or fewer employees are exempt from maintaining OSHA 300, 301, and 300A records, which track work-related injuries. The current rule also exempts thousands of employers based on their Standard Industrial Classification (“SIC”) codes. Under the new rule, the list of exempted employers will be based on North American Industry Classification System (“NAICS”) codes. As a result, many employers who were once exempted from OSHA’s recordkeeping requirements will now have to begin maintaining OSHA 300, 301, and 300A records. Some of the industries now covered by the recordkeeping rules include:

  • “Bakeries and tortilla manufacturing;”
  • “Automobile dealers;”
  • “Automotive parts, accessories and tire stores;”
  • “Lessors of real estate;”
  • “Facilities support services;”
  • “Beer, wine, and liquor stores;”
  • “Commercial and industrial machinery and equipment rental and leasing;”
  • “Direct selling establishments;”
  • “Performing arts companies;”
  • “Museums , historical sites, and similar institutions;”
  • “Amusement and recreation industries; and
  • “Other personal services.”

The first question that comes to mind when seeing this list of industries now covered under the recordkeeping rule is, “What is OSHA even talking about?” Thus, it is important that employers learn what their NAICS code is to determine if they are now covered by the recordkeeping rule. If so, the employer will then have to count its number of employees to see if it has 10 or fewer. There is information available from OSHA at on how to conduct this assessment and also identify the employers now subject to the rule.

In short, OSHA’s new rule will encompass hundreds of thousands of employers who never had to keep these records. Moreover, because of the January 1, 2015 implementation date, these employers must take prompt action to ensure that they are prepared to record injuries and illnesses in the future.

LATER THIS WEEK — Information on how these changes impact employers, their reporting requirements and what we can expect from OSHA in the coming new year.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.