By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

At the start of an OSHA inspection, the agency will likely ask to review the employer’s injury and illness records.  Barring an applicable exemption, OSHA regulations require that these records include (1) a log of work-related injuries and illnesses (OSHA Form 300), (2) an incident report for each injury and illness (OSHA Form 301), and (3) an Annual Summary of work-related injuries and illnesses (OSHA Form 300A).  29 C.F.R. 657(c)(2).

Are Any Employers Exempted From these Requirements?

OSHA regulations  provide for two categories of employers which may not be required to create or maintain injury and illness records.

Small Employers: An employer that employs ten or fewer employees during the calendar year need not keep injury and illness records unless informed in writing to do so by OSHA or the Bureau of Labor Statistics (“BLS”). 29 C.F.R. 1904.1

Low Hazard Industries: A business establishment that is classified as a low hazard industry need not keep injury and illness records unless informed to do so by OSHA, the BLS or a state agency operating under the authority of OSHA or the BLS.  The list of industries within this exemption was narrowed by OSHA effective January 1, 2015. The exemption does not apply to an employer which has a business establishment engaged in a non-exempt industry. 29 C.F.R. 1904.2

What Injuries and Illnesses Must be Recorded by a Non-Exempt Employer? 

A non-exempt employer must record all occupational injuries and illnesses which result in the following:

1. Death;
2. Loss of consciousness;
3. Days away from work;
4. Restricted work activity or job transfer;
5. Medical treatment beyond first aid;
6. A needle stick or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material;
7. Hearing loss as determined by an audiogram;
8. Medical removal under the medical surveillance requirements of an OSHA standard (i.e., lead, cadmium, methyl chloride, formaldehyde, benzene, etc.)
9. Tuberculosis infection as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional after exposure to a known case of active tuberculosis;
10. Musculoskeletal disorder; and
11. Cancer, chronic irreversible disease,  fractured or cracked bone, or a punctured ear drum.

29 C.F.R. 1904.7-1904.12.

Where Must Injury and Illness Records be Maintained?

The records must be maintained by a non-exempt employer at each establishment  that is expected to be in operation for one year or longer. 29 C.F.R. 1904.30

Short Term Establishments: Only one  OSHA 300 Log need be maintained for all of an employer’s short-term establishments expected to be in operation for less than one year. 29 C.F.R. 1904.30

Single Location: An establishment is a single location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office).  Where distinctly separate activities are performed at a single location (such as contract construction activities operated from the same physical location) each activity  shall be treated as a separate establishment. 29 C.F.R. 1904.46

Physically Dispersed Activities: For activities where employees do not work at a single location, such as construction, transportation, communications, electric, gas and sanitary services, the establishment is represented by main or branch offices, terminals, stations, etc., that either supervise such activities or are the base from which the personnel carry out these activities. 29 C.F.R. 1904.46

Traveling Employees: Records for  personnel who do not primarily report or work at a single establishment, and who are generally unsupervised in their daily work, such as traveling salesmen, technicians, engineers, etc., shall be maintained at the location from which they are paid or the base from the personnel operate to carry out their activities.

Maintenance Away From Establishment: An employer may maintain  the log of work-related injuries and illnesses at a central location or by means of data-processing equipment, or both, only under the following circumstances: (1) the employer can transmit information to the central location within seven days of receiving information that a recordable case has occurred; and (2) the employer can send the records from the central location to each establishment within the short time periods required by OSHA regulations for production of the records. 29 C.F.R. 1904.30

Change in Ownership: Where an establishment has changed ownership, the employer shall be responsible for maintaining records only for that period of time during which it owned the establishment. However, in the cases of any change in ownership, the employer shall preserve those records, if any, of the prior ownership which are required to be maintained. 29 C.F.R. 1904.34

How and When Must Entries Be Made on the OSHA Form 300?

For every recordable  work-related illness or injury at a non-exempt employer, an entry must be made on the OSHA Form 300 in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300.  An employer must record the injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

How and When Must the OSHA Form 301 be Completed?

For every recordable work-related illness or injury at a non-exempt employer, the OSHA Form 301 must be completed in the detail described in the instruction accompanying the Form. An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 301.  An employer must record each injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

Duty to Investigate:  Although no duty to investigate a work-related injury or illness is set forth in OSHA regulations, such an investigation is necessary to complete OSHA Form 301. An employer must answer specific questions which include the following:

1.  What was the employee doing just before the incident occurred?
2. What happened?
3. What was the injury or illness?
4. What object or substance directly harmed the employee?

How and When Must the OSHA Form 300A be Completed?

For each calendar year, a non-exempt employer  must complete, certify and post at each establishment the OSHA Form 300A. The OSHA Form 300A must be completed in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300A.

Time for Posting: For a completed calendar year, OSHA Form 300A must be posted from February 1 through April 30 of the following calendar year. The OSHA Form 300A must be posted in the same location as other notices required by the OSH Act to be posted at each establishment of the employer. For employees who do not primarily report or work at a single establishment, or who do not report to any fixed establishment on a regular basis, employers must satisfy the posting requirement by presenting or mailing a copy of the OSHA  Form 300A during the month of February of the following year to each such employee who receives pay during the month.

Certification: The certification of OSHA Form 300A must certify that the annual summary of injuries and illnesses set forth therein is true and correct.

How Long Must Injury and Illness Records Be Maintained?

Each completed OSHA Form 300, 301 and 300A must be retained for a minimum of five years. 29 C.F.R. 1904.33

Who Can Review an Employer’s Injury and Illness Records?

A non-exempt employer must provide access to its OSHA Forms 300, 301 and 300A to OSHA upon request within four hours. 29 C.F.R. 1904.40.  The employer must also provide access to such forms to any employee, former employee or employee representative upon request by the end of the following business day. 29 C.F.R. 1904.35