Issue link: http://palletcentral.uberflip.com/i/1505351
PalletCentral • July-August 2023 33 finally delivered the rule on July 21, 2023, 88 Fed. Reg. 47254. e new rule takes effect January 1, 2024, and so will apply to submission of CY 2023 injury and illness data by affected employers. e local worksite will have to include the company name when submitting the data (not just the establishment name) and OSHA intends to push the information publicly on its website after identifying and removing information that could be expected to identify individuals, such as their names and contact information included in the Form 301 reports. e rule itself is a bit of "something old, something new, something borrowed" and may make some employers blue! It is a bit of a hybrid, and also departs in meaningful ways from both the Obama and Trump vintage rules. In both of those, small employers were those with between 20-249 workers in specified NAICS codes, and were limited to submission of the Form 300A only. One big change arising from the 2023 rule is that small employers are now defined as having between 20-99 employees (not 249). ose smaller entities will continue to submit only the Form 300A, and will only submit if they fall within the revised list of hazardous industries in "Appendix A" of the rule – some that submitted under the earlier rules no longer have that obligation as OSHA determined they did not meet the criteria, while new NAICS codes have been added under the 2023 rule. e listed NAICS codes do include all manufacturing (NAICS 31-33) as well as warehousing and storage (NAICS 4931) and commercial and industrial machinery (NAICS 8113). ere are many other codes listed so it is advisable to check! Establishments with 100 or more employees – also in specified high hazard industries in modified "Appendix B" of the final rule – will need to submit all three reports as of January 1, 2024: Form 300A, Form 300 and Form 301.Other large establishments with 250 employees or more, and which are NOT included in the NAICS code list, will continue to submit only the Form 300A. Appendix B is also detailed in its coverage and does include wood product manufacturing, machine manufacturing, and warehousing. Notably, on July 13, 2023, OSHA launched a Warehousing National Emphasis Program that will run for three years, and include comprehensive safety inspections focusing on hazards related to powered industrial truck operations, material handling and storage, walking/working surface trip and fall hazards, heat illness prevention, ergonomics, means of egress and fire protection. is raises the stakes for this category of employers for receiving a concurrent SST and NEP inspection, which will include a record audit. OSHA injury/illness forms are done for each individual site that will be in existence for a year, and short-term worksites' data can be aggregated with a main location. Similarly, the number of employees triggering different types of reporting is based on the number at the specific worksite, not for the overall company. OSHA regulations require worksites to keep logs if they have more than 10 employees in most industries (there are low-hazard exceptions), maintaining all three forms discussed above. But for "reporting employers" covered by the 2016 E-Recordkeeping rule (as modified by President Trump, and again in the new rule), their data is not only reviewed by OSHA, it is available for public scrutiny via OSHA's website (www.osha.gov). e Trump administration had sought to block publication of the data, but surrendered in its lawsuit with Public Citizen Health Research Group and began making the data searchable online in 2020. e data submitted by employers also forms the core of the agency's "Site Specific Targeting Program." e SST initiative dictates which employers will receive a programmed inspection visit from OSHA. ose inspections are "wall to wall" rather than focusing on a particular issue (e.g., amputation prevention or heat stress) under an OSHA National Emphasis Program (NEP). OSHA maximum penalties reached $156,000 per violation as of January 15, 2023, and will increase again next year. As a reminder, the highest ranking individual at the location must sign the Form 300A as true and correct under penalty of criminal prosecution! Similarly, if ANY falsified data are submitted electronically by a company representative, that could also lead to personal criminal exposure under the Occupational Safety & Health Act of 1970. erefore, if you are your company's "designated felon" for purposes of these logs, make sure to trust but verify the data compiled by those preparing the logs for submission. For more information on OSHA recordkeeping, contact Adele Abrams at safetylawyer@gmail.com. One big change arising from the 2023 rule is that small employers are now defined as having between 20-99 employees (not 249). Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and also provides safety training and consultation. The Law Office of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV. She may be reached at www.safety-law.com or 301-595-3520.