OSHA Injury and Illness Recordkeeping

Practical Law Practice Note 6-516-2895 (Approx. 33 pages)

OSHA Injury and Illness Recordkeeping

by Practical Law Labor & Employment

Covered Employers

The OSH Act covers entities with at least one employee, including non-profit organizations (see Practice Note, Health and Safety in the Workplace: Overview: Covered Employers). An employer covered by the OSH Act must comply with recordkeeping requirements unless it fits within a partial exemption (see Partial Exemptions).

Partial Exemptions

An employer covered by the OSH Act must record certain work-related injuries and illnesses unless it either:

Had ten or fewer employees (company-wide) at all times during the previous calendar year.
Operates in one of the specific low-hazard industries identified by OSHA. For a complete list of partial exemptions, see OSHA: Partially Exempt Industries.

(29 C.F.R. §§ 1904.1 and 1904.2; 29 C.F.R. Pt. 1904, Subpt. B, App. A.)

For more information about partial exemptions, see OSHA: Occupational Injury and Illness Recording and Reporting Requirements – NAICS Update and Reporting Revisions, Final Rule and OSHA: Industries that Include Establishments that Would Be Newly Required to Keep Records.

These exemptions are considered partial exemptions from the OSHA recordkeeping regulations because employers exempt from the routine recordkeeping requirements due to company size or industry are not exempt from OSHA's reporting obligations. Employers must report each work-related:

Fatality.
In-patient hospitalization of one or more employees.
Amputation.
Loss of an eye.

In addition, an employer in a partially exempt industry may be required to record injuries and illnesses if it receives written notice from OSHA or the Bureau of Labor Statistics requesting that it do so.

For more information on reporting obligations, see Practice Note, Health and Safety in the Workplace: Overview: Reporting Certain Accidents or Injuries.

Which Injuries and Illnesses Must Be Recorded?

Within seven calendar days, an employer must record every injury, illness, or fatality (see Definition of Injury or Illness) of covered employees (see Covered Employees) that:

Is work-related (see What Is Work-Related?).
Is a new case (see What Is a New Case?).
Meets one or more of either OSHA's:
- general recording criteria (29 C.F.R § 1904.7; see General Recording Criteria Under the Federal Regulations); or
- other recording criteria (29 C.F.R. §§ 1904.8-1904.12; see Other Recording Criteria Under the Federal Regulations).

(29 C.F.R. § 1904.4.)

Covered Employees

OSHA regulations require an employer to record work-related injuries and illnesses for:

Employees on its payroll (regardless of whether they are executive, hourly, part-time, or seasonal).
Employees that the employer or the employer's agent supervises, regardless of whether they are on the employer's payroll. If an employer supervises employees of a temporary agency or a contractor, it must record injuries and illnesses suffered by these individuals.
Contract employees who work in areas covered by OSHA's Process Safety Management of Highly Hazardous Chemicals standard, even if the employer does not supervise the contract employees.

(29 C.F.R. §§ 1904.31 and 1910.119(h).)

The OSH Act does not consider any of the following employees for recordkeeping purposes:

Independent contractors.
Unpaid volunteers.
Sole proprietors.
Immediate family members working on family farms.
Domestic workers in private residences.

(See OSHA: Detailed Guidance for OSHA's Injury and Illness Recordkeeping Rule, Preamble Discussion: Section 1904.31 and 29 C.F.R. §§ 1975.4(b)(2) and 1975.6.)

Definition of Injury or Illness

OSHA regulations define injury or illness as an abnormal condition or disorder (29 C.F.R. § 1904.46).

For example, injuries include:

Cuts.
Sprains.
Fractures.
Amputations.

(29 C.F.R. § 1904.46.)

Illnesses include:

Skin disease.
Respiratory disorder.
Poisoning.

(29 C.F.R. § 1904.46.)

What Is Work-Related?

After an employer determines that a covered employee suffered an injury or illness as defined by the OSHA regulations, the employer must next determine if the injury or illness is work-related. An injury or illness is work-related if events or exposures in the work environment:

Caused the injury or illness.
Contributed to the injury or illness.
Significantly aggravated a preexisting injury or illness (see Significant Aggravation).

(29 C.F.R. § 1904.5.)

An employer should make a good faith determination of whether an injury or illness is work-related. If OSHA later challenges the employer for not including an injury or illness on an OSHA form, OSHA bears the burden of establishing the injury or illness is work-related.

For examples of work-related injuries and illnesses, see OSHA Recordable Injuries and Illnesses Checklist: Work-Related Injuries and Illnesses.

Geographic Presumption

Injuries and illnesses are presumed to be work-related if they result from an event occurring where employees are either:

Working.
Present as a condition of their employment.

(29 C.F.R. § 1904.5(b).)

However, there are nine exceptions to this geographic presumption. An employer is not required to record injuries or illnesses if:

At the time of the injury or illness, the employee was at the workplace as a member of the public, rather than as an employee.
The employee's symptoms surface at work but result solely from a non-work event.
The employee's injury or illness results solely from voluntary participation in a wellness program or medical, fitness, or recreational activity (such as blood donation, a flu shot, or exercise classes).
The employee's injury or illness results solely from eating, drinking, or preparing food for personal consumption. However, if the employee contracts food poisoning from employer-provided food or the food was tainted by workplace contaminants such as lead, it is work-related.
The employee's injury or illness results solely from:
- personal grooming;
- self-medication for non-work-related conditions; or
- intentional self-inflicted harm.
The employee's injury or illness is caused by a motor vehicle accident in the employer's parking lot or access road during the employee's commute to or from work.
At the time of the injury or illness, the employee was performing personal tasks unrelated to employment at the workplace outside assigned working hours.
The illness is the common cold or flu.
The illness is a mental illness, unless the employee voluntarily provides an opinion from a medical professional that the mental illness is work-related.

(29 C.F.R. § 1904.5(b)(2).)

To learn more about recording work-related injuries for remote or traveling employees, see Practice Notes, Remote Employees: Best Practices: Recording Work-Related Injuries and Illnesses Under the OSH Act and Health and Safety Issues for Traveling Employees: Recording Work-Related Injuries and Illnesses Under the OSH Act.

Significant Aggravation

An injury or illness is work-related if events or exposures in the work environment significantly aggravated a preexisting injury or illness. This occurs when an event or exposure in the work environment results in any of the following, and the result would not have occurred without the event or exposure:

Death (an employer must also report any work-related fatalities to OSHA within eight hours (see Practice Note, Health and Safety in the Workplace: Overview: Reporting Certain Accidents or Injuries)).
Loss of consciousness, regardless of duration.
One or more days:
- away from work;
- of restricted work; or
- of job transfer.
Medical treatment not previously required.

(29 C.F.R. § 1904.5(b)(4).)

What Is a New Case?

A workplace injury or illness is a new case when an employee has:

Never before reported similar symptoms.
Completely recovered (meaning all signs and symptoms of a previous injury or illness have disappeared), and workplace events or exposures cause the signs or symptoms to reappear.

(29 C.F.R. § 1904.6.)

General Recording Criteria Under the Federal Regulations

An employer must record work-related injuries and illnesses (see What Is Work-Related?) that are new cases (see What Is a New Case?) and result in any of the following:

Death.
Days away from work.
Restricted work (see Restricted Work) or transfer to another job.
Medical treatment beyond first aid (see Medical Treatment Beyond First Aid).
Loss of consciousness, regardless of duration.
A significant injury or illness diagnosed by a physician or other licensed health care professional (for example, cracked bones, punctured ear drums, cancer, or chronic irreversible diseases).

(29 C.F.R. § 1904.7.)

For examples of work-related, new injuries or illnesses falling under the general recording criteria, see OSHA Recordable Injuries and Illnesses Checklist: General Recording Criteria.

Restricted Work

A work-related injury or illness results in restricted work and must be recorded if the employee is:

Limited in performing one or more routine functions (a work activity the employee regularly performs at least once per week) (see OSHA: Interpretation Letter (April 25, 2006)).
Restricted from working one or more full days (not counting the day of the injury).
Recommended by a medical professional to restrict one or more routine functions or not work for at least one full day of work (not counting the day of the injury), even if the employee does not follow the recommendation.

(29 C.F.R. § 1904.7(b)(4).)

An employer is not required to record "minor musculoskeletal discomfort" if a medical professional determines the employee is able to perform all routine functions but recommends a work restriction to prevent a more serious condition (see OSHA: Detailed Guidance for OSHA's Injury and Illness Recordkeeping Rule).

Medical Treatment Beyond First Aid

Work-related injuries and illnesses resulting in medical treatment beyond first aid must be recorded. Medical treatment means the management and care of a patient to combat disease or disorder (29 C.F.R. § 1904.7(b)(5)(i)).

Medical treatment does not include any of the following:

Visits to a medical provider for observation or counseling only.
Diagnostic procedures (for example, x-rays or blood tests).

(29 C.F.R. § 1904.7(b)(5)(i).)

The following are considered first aid and should not be recorded because they are not medical treatment beyond first aid:

Using non-prescription medicine at non-prescription strength.
Administering a tetanus shot.
Cleaning, flushing, or soaking a surface wound.
Covering a wound with a bandage or Band-Aid.
Administering hot or cold therapy.
Using non-rigid supports (such as elastic bandages or wraps).
Using temporary immobilization devices (such as a splint or sling) while transporting an accident victim.
Drilling a fingernail or toenail to relieve pressure or draining fluid from a blister.
Using an eye patch.
Removing a splinter or foreign material by irrigation, tweezers, or swab.
Using a finger guard.
Administering massage (not including physical therapy or chiropractic treatment).
Administering fluids for heat stress relief.

(29 C.F.R. § 1904.7(b)(5)(ii).)

Other Recording Criteria Under the Federal Regulations

Work-related injuries and illnesses that are new cases and meet one of the following criteria must also be recorded:

Needlestick injuries or cuts from a contaminated sharp object.
Medical removal of an employee under the medical surveillance requirements of an OSHA standard. OSHA standards that contain medical removal provisions include lead, cadmium, and benzene (see Practice Note, OSHA Medical Surveillance and Screening).
Occupational hearing loss.
Tuberculosis infection or exposure.

(29 C.F.R. §§ 1904.8, 1904.9, 1904.10, and 1904.11.)

For examples of work-related, new injuries or illnesses falling under other recording criteria, see OSHA Recordable Injuries and Illnesses Checklist: Special Recording Criteria.

Recording COVID-19 Cases

According to OSHA, COVID-19 is a recordable illness (and employers are responsible for recording cases of COVID-19) if:

The case is a confirmed case of COVID-19 (see Centers for Disease Control and Prevention (CDC): Information for Health Departments on Reporting Cases of COVID-19).
The case is work-related as defined by 29 C.F.R. § 1904.5 (see What Is Work-Related?).
The case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7 (see General Recording Criteria Under the Federal Regulations).

(OSHA: COVID-19: Regulations; see also OSHA: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.)

OSHA guidance also:

Urges employers to report outbreaks to local health departments as required and support their contact tracing efforts.
Reminds employers that employers are prohibited from retaliating against employee for reporting an infection or exposure to COVID-19 to an employer.

(OSHA: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.)

For OSHA guidance on recording COVID-19 vaccine adverse reactions, see Practice Note, Vaccination in the Workplace: Recording Vaccine Side Effects.

OSHA's previous and now archived enforcement guidance provided information on how to determine if an employee's COVID-19 case is "work-related." For more information on this guidance, see Box, Archived OSHA Enforcement Guidance on Recording COVID-19 Cases.

For more information and resources on COVID-19 and the workplace, see COVID-19: Employment Law and Developments Tracker and Employment Global Coronavirus Toolkit.

Recording Injuries and Illnesses on OSHA Forms

Within seven calendar days, an employer must record work-related injuries and illnesses on two separate OSHA forms: OSHA 300 and OSHA 301 (or their equivalents). Additionally, at the end of the calendar year, an employer must complete an annual summary, the OSHA 300A (or an equivalent). For more information on equivalent forms, see Use of Equivalent Forms.

OSHA 300 Log of Work-Related Injuries and Illnesses

The OSHA 300 Log of Work-related Injuries and Illnesses (300 Log) is an annual, cumulative chart used to document and classify work-related injuries and illnesses and note the severity of each case. An employer must complete all required information on the 300 Log (or an equivalent) within seven calendar days of receiving notice that a covered employee has suffered a work-related injury or illness that must be recorded (29 C.F.R. § 1904.29). Recording an injury or illness on the 300 Log does not mean that the injury or illness is covered under workers' compensation laws.

The 300 Log includes the following information:

A case number. The employer assigns the case number. Some employers begin the case number with the year and then add "-1," "-2," and so on for each new case.
The employee's name unless it is a privacy concern case (see Privacy Concern Cases).
The employee's job title.
The date of the injury or illness.
Where the injury occurred (for example, production floor).
A brief description (typically, one or two lines) of the injury or illness.
Classification of the case. An employer classifies an injury or illness by placing a check mark in the appropriate outcome column on the 300 Log. The employer should select the outcome column reflecting the most serious outcome. The columns are listed in descending order of seriousness. Employers should update the outcome if necessary by crossing out their prior check marks.
Number of calendar days away from work or on restricted duty, including weekends and holidays. Employers should not include the day of the injury or illness. For lengthy absences, an employer should enter the estimated days and revise if necessary. The number of days is capped at 180, even if the actual days away from work or on restricted duty turns out to be greater. If a medical professional recommends a certain number of days away from work or on restricted duty, employers should enter the recommendation (even if the actual number of days turns out to be less than the recommendation). Partial days are counted as full days.
Type of injury or illness. An employer indicates the type of injury or illness by placing a check mark in the appropriate column on the 300 Log.

(29 C.F.R. § 1904.7.)

A sample 300 Log is available at OSHA: Injury & Illness Recordkeeping Forms. For more information on equivalent forms, see Use of Equivalent Forms.

Competing Medical Opinions

In certain circumstances, OSHA's recordkeeping requirements permit an employer to choose between two or more conflicting or differing medical recommendations about the need for medical treatment, restricted duty, or days away from work. In order for an employer to rely on a medical opinion that conflicts with another one, the employer must show that the medical opinion was:

Contemporaneous with the injury. In order for two or more conflicting recommendations to be considered contemporaneous, they must be conducted within a time frame when the injury or illness is in the same stage, with the same degree of severity, and in a similar context for analysis. In most instances, OSHA considers conflicting medical recommendations rendered on the same day as the injury to be contemporaneous.
More authoritative than the other medical opinions. In determining which medical opinion is most authoritative, employers must look to which opinion is best documented, best reasoned, and most persuasive.

(See 29 C.F.R. § 1904.7(b)(3)(ii); see also OSHA: Recordkeeping Policies and Procedures Manual; see also OSHA: Interpretation Letter (May 15, 2007).)

Whether an employer can rely upon a contemporaneous and conflicting medical opinion often depends on when the opinion was rendered and whether the employee received any medical treatment, was assigned to restricted duty, or took days off from work because of the injury. Once medical treatment beyond first aid is provided, the employee works light duty, or the employee takes days off from work, the injury or illness must be recorded. This is true even if a second physician later concludes that medical treatment, restricted duty, or days away from work were not medically necessary. OSHA considers medical treatment to have occurred on the issuance of a prescription for medication, regardless of whether the employee fills the prescription or takes the medication. (See OSHA: Interpretation Letter (Feb. 6, 2007).)

However, if the first medical provider does not provide medical treatment and the employee does not work restricted duty or take days off because of the injury, the employer is free to exercise its discretion in determining which medical opinion is most authoritative. For example, consider an employee who reports to the company doctor generalized complaints of work-related aches and pains. In this example, the company doctor provides the employee with over-the-counter pain medication in a non-prescription dosage. The next day, the employee goes to a second doctor who prescribes prescription pain medicine and puts the employee off work for two days. In this scenario, the employer may rely on the first medical opinion and treat the case as non-recordable, as long as the employer reasonably determines that the first opinion is more authoritative. (See OSHA: Interpretation Letter (Feb. 25, 2011).)

The requirements that conflicting medical opinions be contemporaneous and that medical treatment not yet have occurred do not apply in the context of an employer's determination of whether an injury or illness is work-related. OSHA's recordkeeping regulations allow an employer to rely on a second, conflicting medical opinion that an injury or illness is not work-related as long as the employer can demonstrate that the second opinion is more authoritative. This is true even if the conflicting opinions are not contemporaneous and even if the employee received medical treatment, worked restricted duty, or took time off from work as a result of the injury or illness. (See OSHA: Interpretation Letter (Feb. 28, 2014).)

Privacy Concern Cases

An employer must enter the term "privacy case" on the 300 Log instead of an employee's name in the following circumstances:

Injuries or illnesses to an intimate body part or the reproductive system.
Injuries or illnesses resulting from a sexual assault.
Mental illnesses.
HIV infection, hepatitis, or tuberculosis.
Needlestick injuries and cuts from sharp objects contaminated with another person's blood or potentially infectious material.
Other illnesses (but not injuries) if the employee requests his name not be entered on the 300 Log.

(29 C.F.R. § 1904.29(b)(6) and (7).)

Under OSHA regulations, an employer must keep a separate confidential list of the case numbers and employee names for privacy concern cases (29 C.F.R. § 1904.29(b)(6)).

If the employee's job title or a description of the nature of the injury or illness may enable others to identify the employee, an employer should consider leaving the job title blank and limiting the amount of detail provided on the 300 Log (29 C.F.R. § 1904.29(b)(9)).

Multiple Establishments

An employer must maintain a separate OSHA 300 Log for each separate establishment it expects to operate for one year or longer (29 C.F.R. § 1904.30). An establishment means a single physical location where either:

Business is conducted.
Services or operations are performed.

(29 C.F.R. § 1904.46.)

An employer can keep one 300 Log that covers all of the employer's short-term establishments (meaning, those that will exist for less than a year) (29 C.F.R. § 1904.30).

If employees do not work in a single physical location (for example, construction projects), the establishments are the offices that supervise or are the base of the activities (29 C.F.R. § 1904.46).

If employees are injured or become ill at an establishment where they do not normally work, the case should be recorded on the 300 Log for the establishment where they were injured (not where they normally work). If an employee is injured or becomes ill at a location other than one of an employer's establishments, the case should be recorded on the 300 Log for the establishment where the employee normally works. (29 C.F.R. § 1904.30.)

An employer must link employees who work remotely to one of the employer's establishments (29 C.F.R. § 1904.46; see also Practice Note, Remote Employees: Best Practices: Recording Work-Related Injuries and Illnesses Under the OSH Act).

OSHA 301 Injury and Illness Incident Report

The OSHA 301 Injury and Illness Incident Report (301 Incident Report) supplements the 300 Log by providing more detailed information about a particular case. An employer must complete an Incident Report (or equivalent form) for each of the cases recorded on the 300 Log within seven calendar days after receiving notice that a covered employee has suffered a work-related injury or illness (29 C.F.R. § 1904.29(b)(3)).

The 301 Incident Report includes information about:

The employee's identity.
The physician or other medical professional that treated the employee.
The case, including what the employee was doing before the accident occurred and what happened.

A sample 301 Incident Report is available at OSHA: Injury & Illness Recordkeeping Forms. For more information on what is an equivalent form, see Use of Equivalent Forms.

OSHA 300A Summary of Work-Related Injuries and Illnesses

At the end of each calendar year, an employer must create an annual summary of the injuries and illnesses at each of its establishments. An employer must complete the OSHA 300A Summary of Work-Related Injuries and Illnesses (300A Summary) or an equivalent form even if there were no work-related injuries or illness recorded during the calendar year.

To comply with OSHA regulations, an employer must:

Review its 300 Log for accuracy and update if necessary.
Summarize the data from the 300 Log on the 300A Summary (or equivalent), including the total number of:
- workplace fatalities;
- cases with days away from work; and
- cases with job transfer or restriction.
Have a company executive (not just any management representative) certify that the information on the annual summary is accurate and complete. The company executive must be one of the following:
- an owner of the company if it is a sole proprietorship or a 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.
Post the annual summary in a conspicuous place in each establishment. The summary must be posted from February 1 through April 30 of the year following the year covered by the summary.

(29 C.F.R. § 1904.32.)

A sample 300A Summary is available at OSHA: Injury & Illness Recordkeeping Forms. For more information on what is an equivalent form, see Use of Equivalent Forms.

Use of Equivalent Forms

OSHA regulations permit an employer to use equivalent forms to record injuries and illness, as well as for incident reports and annual summaries. An equivalent form:

Includes the same information as the OSHA form it replaces.
Is readable and understandable.
Is completed using the same instructions as the OSHA form it replaces.

(29 C.F.R. § 1904.29(b)(4).)

For example, employers often rely on a workers' compensation first report of injury form as an equivalent form to the OSHA 301.

Maintaining Injury and Illness Records

An employer must keep all 300 Logs, privacy case lists, 301 Incident Reports, and 300A Summaries for a period of five years after the end of the calendar year they cover (29 C.F.R. § 1904.33).

OSHA regulations require an employer to update 300 Logs to incorporate any newly discovered information or outcome changes during the five-year recordkeeping period. For example, if a more severe outcome occurs, such as an employee who has been injured and away from work ultimately dies from the injury, the employer must update the 300 Log. (29 C.F.R. § 1904.33.) There is no requirement to update the 301 Incident Reports or the 300A Summaries based on new information or outcome changes (29 C.F.R. § 1904.33).

An employer is permitted to maintain required records at its headquarters or other central location, rather than each establishment, if both:

Information regarding an injury or illness that must be recorded can be transmitted from the establishment to the central location within seven calendar days.
Records can be produced to:
- a government representative within four business hours of a request;
- an employee by the end of the next business day after the request;
- a former employee by the end of the next business day after the request;
- a current or former employee's personal representative by the end of the next business day after the request; and
- a current or former employee's union representative, with certain information removed, within seven calendar days of the request (see Employee Access).

(29 C.F.R §§ 1904.30, 1904.35, and 1904.40.)

Procedure and Prohibition Against Retaliation for Reporting Work-Related Injuries or Illnesses

OSHA's Anti-Retaliation Regulations

OSHA's recordkeeping standards were amended in 2016 to include three new provisions relating to the prohibition of retaliation for reporting work-related injuries and illnesses. The amendments:

Require employers to notify employees that they have a right to report work-related injuries and illnesses free from retaliation (see 29 C.F.R. § 1904.35(a)(2) and (b)(1)(ii) and (iii)).
Require that employers' policies and procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting (see 29 C.F.R. § 1904.35(a)(1) and (b)(1)).
Reaffirm that employers are prohibited from retaliating against employees for reporting work-related injuries and illnesses (see 29 C.F.R. § 1904.35(b)(1)(iv)).

To learn more about retaliation under the OSH Act, see Practice Note, Whistleblower Complaints Under the Occupational Safety and Health Act.

Although the revised standards do not provide any definitions or give any examples of policies or procedures that deter or discourage employees from reporting, the Preamble to the Final Rule cites the following examples of employer practices that OSHA believes may deter or discourage employees from reporting work-related injuries or illnesses:

Disciplinary policies or practices that result in the disproportionate or retaliatory issuance of discipline to employees who report injuries or illnesses (see Retaliatory Disciplinary Policies or Practices).
Automatic post-injury drug testing, even in situations where the injury or illness is very unlikely to have been caused by employee drug use (see Post-Injury or Incident Drug and Alcohol Testing).
Safety incentive programs that reward employees for being "injury free" or maintaining a low rate of injury over a specified period of time (see Safety Incentive Programs).

(See Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624-01 (May 12, 2016).)

For a model policy reporting policy with anti-retaliation provisions, see Standard Document, Reporting Workplace Injuries and Illnesses Policy.

Retaliatory Disciplinary Policies or Practices

Employers have a right to enforce work and safety rules in the workplace but should not adopt policies or practices that discipline employees solely for reporting a work-related injury or illness. Examples of policies or practices that may potentially be retaliatory include:

Disciplining employees for violating vague safety rules (for example, "work carefully" or "maintain situational awareness").
Suspending employees without pay to investigate a reported injury.
Rendering employees who report injuries ineligible for certain positions or promotions.
Permitting harassment or intimidation of employees who report injuries.

Employers should not selectively apply legitimate work or safety rules to discipline employees who report work-related injuries while not disciplining employees who violate the same rules without incurring an injury. Under the revised anti-retaliation provisions, OSHA can issue citations to employers who discipline employees who report work-related injuries disproportionately or when no legitimate reason exists for the discipline (29 C.F.R. § 1904.35(b)(1)(iv)).

Nothing in the revised anti-retaliation provisions prohibits employers from disciplining employees for violating legitimate work or safety rules, even if the same employee who violated the safety rule also suffered and reported an injury. However, employers must apply work and safety rules consistently and issue discipline any time there is a violation, not just a violation that results in a reported injury.

For a sample policy containing safety rules, see Standard Document, Workplace Safety Rules and Procedures.

Post-Injury or Incident Drug and Alcohol Testing

Employers may not use drug and alcohol testing (or the threat of drug and alcohol testing) as a form of adverse action against employees who report injuries or illnesses. In the preamble to the final rule on the 2016 anti-retaliation regulations, OSHA:

Expressed concern that an employer's blanket post-injury or incident drug and alcohol testing policy may deter employees from reporting work-related injuries or illnesses.
Maintained that drug and alcohol testing policies should limit post-injury or incident testing to situations in which:
- employee drug use is likely to have contributed to the incident;
- the drug or alcohol test can accurately measure the employee's level of impairment, not just drug or alcohol use at some time in the recent past; and
- the drug testing is not punitive or embarrassing to the employee.

(See Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624-01, 29672-73 (May 12, 2016).)

In October 2018, OSHA clarified its position on retaliatory post-incident drug testing, making clear that Section 1904.35(b)(1)(iv) does not prohibit post-incident drug testing (see OSHA: Interpretation Letter (Oct. 11, 2018)). In this memorandum, OSHA explains that an employer's post-incident drug testing violates Section 1904.35(b)(1)(iv) only if the employer acted to penalize an employee for reporting a work-related injury or illness, rather than for the legitimate purpose of promoting workplace safety and health. OSHA also states that most instances of workplace drug testing are permissible under Section 1904.35(b)(1)(iv), including the following examples:

Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers' compensation law.
Drug testing under other federal law, such as a US Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. OSHA adds that if the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

(OSHA: Interpretation Letter (Oct. 11, 2018).)

For more information on post-injury or incident drug and alcohol testing, see Practice Note, Drug and Alcohol Use, Abuse, and Testing in the Workplace: Compliance with the OSH Act and Standard Document, Drug Testing in the Workplace Policy: Drafting Note: Post-Incident Testing.

Safety Incentive Programs

OSHA has expressed concerns with safety incentive programs or employee bonus systems that focus on lower numbers of reported injuries or illnesses because programs have the potential to discourage workers from reporting work-related injuries or illnesses. The Preamble to the Final Rule to Improve Tracking of Workplace Injuries and Illnesses states that "it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness" (see Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624-01, 29674 (May 12, 2016)).

In October 2018, OSHA clarified its position on workplace safety incentive programs under Section 1904.35(b)(1)(iv), stating that this rule does not prohibit workplace safety incentive programs (see OSHA: Interpretation Letter (Oct. 11, 2018)). In this memorandum, OSHA:

Acknowledges that incentive programs can be an important tool to promote workplace safety and health.
Explains that an employer's action under a safety incentive program violates Section 1904.35(b)(1)(iv) only if the employer took the action to penalize an employee for reporting a work-related injury or illness, rather than for the legitimate purpose of promoting workplace safety and health.

OSHA also specifically addresses the following types of incentive programs in the October 2018 memorandum:

Positive incentive programs. OSHA states that positive action taken under this type of program is always permissible under Section 1904.35(b)(1)(iv). Positive incentives can include bonuses or rewards for employees who:
- report near-misses or hazards;
- participate on a safety committee;
- complete a certain number of hours of safety training;
- participate in the investigation of an injury, accident, or near miss incident; or
- make a suggestion as to how work or safety practices may be changed to decrease risks.
Rate-based incentives programs. As described by OSHA, this type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on the lack of injuries in a work unit. OSHA states that rate-based incentive programs are permissible as long as the employer does not implement the program in a manner that discourages reporting. Therefore, as long as an employer implements adequate precautions to ensure that employees feel free to report an injury or illness, OSHA would not cite the employer for taking negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury.

OSHA also cautions, however, that an employer's statement that employees are encouraged to report and will not face retaliation for reporting may be inadequate to avoid inadvertent deterrent effects or a rate-based incentive program. OSHA suggests that employers take positive steps to create a workplace culture that emphasizes safety, and not just rates, such as implementing:

An incentive program that rewards employees for identifying unsafe conditions in the workplace.
A training program for employees that reinforces reporting rights and responsibilities and emphasizes the employer's non-retaliation policy.
A mechanism for accurately evaluating employees' willingness to report injuries and illnesses.

(OSHA: Interpretation Letter (Oct. 11, 2018); see also OSHA Memorandum on Further Improvements to VPP (Aug. 18, 2017) and OSHA Memorandum on Employer Safety Incentive and Disincentive Policies and Practices (Mar. 12, 2012).)

"Immediate" Reporting Policies

While OSHA recognizes that employers have a legitimate interest in promptly receiving and responding to reports of injuries, employers' policies and procedures for reporting must be reasonable and must not deter employees from reporting. OSHA's recordkeeping regulations do not set forth any specific time frame for employees to report work-related injuries or illnesses. Nevertheless, OSHA closely scrutinizes employer policies that require "immediate" reporting of workplace injuries or illnesses. OSHA takes the position that these policies are unreasonable because:

It is impossible or impracticable in many instances for employees to comply because there are many situations where an employee may be unaware at the time of an incident that the employee sustained an injury, especially where the nature of the work at issue involves physically strenuous activity.
Employees who are involved in an incident and only later realize that they suffered an injury may be discouraged from reporting the injury for fear of being disciplined for not reporting immediately after the incident.

(See OSHA Memorandum on Employer Safety Incentive and Disincentive Policies and Practices (Mar. 12, 2012).)

Access to Injury and Illness Records

The OSH Act and OSHA regulations provide guidance to employers concerning OSHA and employee access to injury and illness records.

OSHA Access

OSHA forms (or their equivalents) should not be submitted to OSHA unless an employer receives a specific request for them. On request by OSHA during an inspection, an employer must produce recordkeeping forms within four business hours of the request (29 C.F.R. § 1904.40).

For more information about OSHA inspections, see Practice Note, Handling an OSHA Inspection.

Employee Access

Employees, former employees, and their representatives (for example, a union representative or the legal representative of a deceased employee) have a right to review records of work-related injuries and illnesses (29 C.F.R. § 1904.35).

OSHA regulations provide timeframes for an employer to respond to requests for specific records. An employer must provide a copy of:

The current or prior 300 Logs for the establishment where the employee or former employee worked by the end of the next business day.
An 301 Incident Report involving the employee or former employee by the end of the next business day.
The "Tell us about the case" section of an Incident Report to the union representative within seven calendar days if a union represents employees under a collective bargaining agreement. All other information must be removed from the copies of the Incident Reports.

(29 C.F.R. § 1904.35.)

An employer must provide the first set of copies free of charge (29 C.F.R. § 1904.35).

Electronic Submission of Injury and Illness Records to OSHA

History of Rule and Enforcement

In 2016, OSHA issued new electronic reporting requirements for covered employers with an effective date of January 1, 2017. The rule set an initial deadline of July 1, 2017 for submitting information from the 300A Summary but OSHA extended the deadline to December 15, 2017 (see Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55761-01 (Nov. 24, 2017)). OSHA set the deadline for electronic submission of information from the 300 Log and 301 Incident Report as July 1, 2018 but did not enforce this requirement during its proposed rulemaking (see Tracking of Workplace Injuries and Illnesses, 83 Fed. Reg. 36494-01 (July 30, 2018)).

In October 2018, OSHA announced a one-year initiative to target inspections for certain employers who had not provided data under the electronic reporting rule (see OSHA Directive No. 18-01 (CPL 02) (Oct. 16, 2018)).

OSHA's requirements changed with is publication of a final rule in 2019 (see 2019 Final Rule) and again in July 2023 (see 2023 Final Rule).

2019 Final Rule

Under the initial rule, employers with 250 or more employers were required to electronically submit to OSHA information from the 300 Log, 301 Incident Report, and 300A summary. However, in January 2019, OSHA issued a final rule eliminating certain electronic submission requirements (see Tracking of Workplace Injuries, 84 Fed. Reg. 380-01 (Jan. 25, 2019)). Under the new 2019 rule, covered employers with 250 or more employees at any time during the previous calendar year were required to electronically submit to OSHA on an annual basis only information from the 300A Summary (29 C.F.R. § 1904.41(a)(1), (b)(1), and (c)).

The following requirements remained unchanged by OSHA's January 2019 Final Rule:

Covered employers with 20 or more employees but fewer than 250 employees at any time during the previous calendar year that perform work in industries that OSHA has classified as highly hazardous in the new requirement must electronically submit information from the 300A Summary to OSHA on an annual basis (29 C.F.R. § 1904.41(a)(2), (b)(1), and (c)).
If notified by OSHA, any covered employer must electronically submit information from the 300 Log, 301 Incident Report, and 300A Summary to OSHA (29 C.F.R. § 1904.41(a)(3), (b)(1), and (4)).

The 2019 Final Rule also amended the regulation to require employers to provide their Employer Identification Number (EIN) when electronically submitting this information (29 C.F.R. § 1904.41(a)(4)).

2023 Final Rule

In March 2022, OSHA published a proposed rule (87 Fed. Reg. 18528 (Mar. 30, 2022)), followed by a final rule in July 2023 (88 Fed. Reg. 47254-01 (July 21, 2023)).

OSHA's 2023 final rule contains the following requirements:

Establishments with 100 or more employees in certain designated high-hazard industries must electronically submit information to OSHA annually from their:
- Form 300 Log of Work-Related Injuries and Illnesses; and
- Form 301 Injury and Illness Incident Report.
These submissions are in addition to Form 300A Summary of Work-Related Injuries and Illnesses electronic submission requirements already required for establishments with:
- 250 or more employees; or
- 20 to 249 employees in certain high-hazard industries.
To improve data quality, establishments must include their legal company name when making electronic submissions to OSHA from their injury and illness records.

(29 C.F.R. § 1904.41; see also OSHA: Department of Labor Announces Rule Expanding Submission Requirements for Injury, Illness Data Provided by Employers in High-Hazard Industries.)

The final rule takes effect January 1, 2024. Establishments required to submit required information electronically must do so by March 2 of the year after the calendar year covered by the forms (for example, by March 2, 2024, for the forms covering 2023) (29 C.F.R. § 1904.41(c)).

For more on OSHA's 2023 final rule, see OSHA: Final Rule to Improve Tracking.

For information on protecting personally identifiable information in these submissions, see OSHA Fact Sheet: Protecting Personally Identifiable Information (PII).

Other Requirements

OSHA provides a secure website for the electronic submission of information (29 C.F.R. § 1904.41(b)(5); see OSHA: Injury Tracking Application).

Employees include any individual employed by the employer during the calendar year, including workers who are:

Full-time.
Part-time.
Seasonal.
Temporary.

(29 C.F.R. § 1904.41(b)(3).)

If an employer is partially exempt from keeping OSHA injury and illness records, the employer is not subject to these electronic submission requirements, unless otherwise notified by OSHA in writing (29 C.F.R. § 1904.41(b)(6); see Partial Exemptions).

OSHA's electronic submission requirements apply to employers located in states with safety and health plans approved by OSHA (29 C.F.R. § 1904.41(b)(7)). For more about OSHA-approved state plans, see Practice Notes, State Occupational Safety and Health Plans Laws Chart: Overview and Recording and Reporting Occupational Injuries and Illnesses State Law Chart: Overview.

OSHA Citations

OSHA issues penalties for recordkeeping citations when OSHA can document either:

The employer was previously informed of the requirement to keep records.
The employer's deliberate decision to deviate from the recordkeeping requirements or plain indifference to the requirements.

(See OSHA: Recordkeeping Policies and Procedures Manual.)

OSHA citations can be classified in one of five ways:

Other than Serious.
Serious.
Repeat.
Willful.
Failure to Abate.

In general, recordkeeping violations are not classified as Serious citations because they do not create a substantial probability of death or serious physical harm. However, they are often classified as Repeat or Willful, which carry a maximum penalty of $ 156,259 per violation as of January 15, 2023. For more information on OSHA citations and penalties, see:

For more on OSHA's January 2023 enforcement guidance on instance-by-instance citations, see Practice Note, Health and Safety in the Workplace: Overview: Instance-by-Instance Citations.

Best Practices for Injury and Illness Recordkeeping

The following steps can help employers ensure they are accurately recording injuries and illnesses:

Implement a policy requiring employees to report all workplace injuries and illnesses and train employees on the policy. For model policies, see Standard Documents, Reporting Workplace Injuries and Illnesses Policy and Health and Safety in the Workplace Policy.
Train employees on health and safety materials, including:
- the employer's health and safety programs and procedures;
- OSHA standards applicable to the industry or workplace; and
- OSHA's special emphasis programs relevant to the industry or workplace.
(See Workplace Health and Safety Training Checklist.)
Train recordkeeping staff on OSHA requirements and internal recordkeeping procedures, including:
- the employer's health and safety programs and procedures;
- OSHA recordkeeping regulations; and
- OSHA recordkeeping forms.
Train managers to avoid discouraging employees from reporting and recording workplace injuries or illnesses.
Conduct periodic recordkeeping audits that include cross-checking records (for example, first aid logs, workers' compensation reports, and accidents reports) against the required injury and illness recordkeeping forms. An employer should consider preserving attorney-client privilege over the audits by having the audits conducted or directed by in-house or outside legal counsel. For more information about privilege, see Practice Note, Internal Investigations: Attorney-Client Privilege and Work Product Doctrine: Overview.

Archived OSHA Enforcement Guidance on Recording COVID-19 Cases

In May 2020, OSHA issued enforcement guidance on recording COVID-19 cases. However, OSHA subsequently labeled this guidance as an "OSHA Archive Document" that "may no longer represent OSHA Policy" and "is presented here as historical content, for research and review purposes only." (OSHA: Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (May 19, 2020).)

In this guidance, OSHA acknowledged that "[g]iven the nature of the disease and ubiquity of community spread, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace" (OSHA: Revised Enforcement Guidance for Recording Cases of COVID-19 (archive document)).

In light of these difficulties in determining work-relatedness, OSHA announced in its May 2020 enforcement guidance that it was exercising enforcement discretion to assess employers' efforts in making work-related determinations for COVID-19. According to this guidance, the employer must make a reasonable and good faith inquiry to make this determination. If an employer cannot determine that it is more likely than not that workplace exposure played a causal role in a COVID-19 case, the employer does not need to record that COVID-19 illness (see OSHA: Revised Enforcement Guidance for Recording Cases of COVID-19 (archive document)).

OSHA further applied the following considerations in determining whether an employer complied with its obligations to record COVID-19 cases:

The reasonableness of the employer's investigation.
The evidence available to the employer.
The evidence that a worker contracted COVID-19 at work.

(OSHA: Revised Enforcement Guidance for Recording Cases of COVID-19 (archive document).)

Under this archived guidance, for most employers, a reasonable investigation to determine work-relatedness would normally be:

Asking the employee how they believe they contracted the COVID-19 illness.
While respecting employee privacy, discussing with the employee the employee's work and out-of-work activities that may have led to the COVID-19 illness.
Reviewing the employee's work environment for potential SARS-CoV-2 exposure.

(OSHA: Revised Enforcement Guidance for Recording Cases of COVID-19 (archive document).)

OSHA provided examples of the type of evidence that may be relevant. Under this archived guidance, an employee's COVID-19 illness was likely to be work-related if:

Several cases develop among workers who work closely together with no alternative explanation.
The illness is contracted shortly after lengthy and close exposure to a particular customer or coworker with confirmed case of COVID-19 and with no alternative explanation.
The employee's job duties include having frequent and close exposure to the general public in a locality with ongoing community transmission and with no alternative explanation.

Under this archived guidance, an employee's COVID-19 illness was likely not work-related if:

The employee is the only worker to contract COVID-19 in the employee's vicinity and the employee's job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
The employee closely and frequently associates with someone (for example, a family member, significant other, or close friend) outside the workplace who:
- has COVID-19;
- is not a coworker; and
- exposes the employee during the period in which the individual is likely infectious.

(OSHA: Revised Enforcement Guidance for Recording Cases of COVID-19 (archive document).)

OSHA Injury and Illness Recordkeeping | Practical Law