OSHA Waives Form 300A Posting Requirements for Establishments Closed Due to COVID-19

Act Now Advisory

The Occupational Safety and Health Administration (“OSHA”) recently updated its recordkeeping guidance, mandating that covered employers closely monitor and report certain work-related injuries or illnesses. Included among the series of disclosure requirements is OSHA Form 300A, an annual log of work-related injuries and illnesses that occur during the calendar year. Unlike many of the other required disclosures under the recordkeeping rules, Form 300A is intended to promote employee awareness surrounding work-related injuries and illnesses while still protecting employees’ privacy concerns. 

Keeping in line with this purpose, OSHA requires that Form 300A be displayed in a conspicuous place where notices to employees are customarily posted, even if no work-related incidents occurred the previous year, and the form must also remain visible for the duration of the annual notification period prescribed by OSHA. For the 2021 annual notification period, due to the COVID-19 pandemic, OSHA has waived the Form 300A posting requirement, only if “there are no workers at [one’s] physical establishment on February 1, 2021 due to COVID-19” and the establishment remains empty through April 30, 2021. However, if an establishment reopens before May 1, 2021, employers that do not fall into an exempt category must comply with the Form 300A posting requirement. 

Who Must Post Form 300A?

All establishments subject to OSHA’s recordkeeping regulations must maintain and file injury and illness records, including Form 300A. Generally, an establishment must follow OSHA’s recordkeeping rules if it has 11 or more employees and is part of a certain high-hazard industry, such as farming, manufacturing, or construction. OSHA classifies industries using the North American Industry Classification System (“NAICS”). These high-hazard industries have been identified by OSHA, given a NAICS industry code, and listed on OSHA’s website. Additional industries, designated as a high-hazard classification and subject to OSHA’s work-related injuries and illnesses reporting requirements, can be found here. Examples include museums and historical sites, performing arts companies, and automobile dealers.

Notably, even if an establishment is closed due to COVID-19, OSHA still recommends, but does not require, sending employees an electronic copy of Form 300A, since, according to OSHA, raising employee awareness of work-related injuries and illnesses is essential to any good safety and health program.  

Exemptions

There are two carve-outs from the Form 300A posting requirement: (i) exempt companies with 10 or fewer employees “at all times during the last calendar year,” regardless of their industry classification, and (ii) certain low-hazard industries, such as telecommunications, florists, and software publishers. Employers in these categories need not maintain OSHA injury and illness records unless directed to do so in writing by OSHA or the Bureau of Labor Statistics. A full list of exempt industries can be found here.

Note that all employers, including those exempted by reasons of company size or industry classification, must report to OSHA any workplace accident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye.

What Employers Should Do Now

  • Determine if your establishment is subject to OSHA’s recordkeeping regulations.
  • If your establishment is required to keep records and remains open, post Form 300A in a conspicuous place from February 1, 2021, until April 30, 2021, which is the annual reporting period required by OSHA. 
  • If your establishment is subject to OSHA’s recordkeeping rules and is closed due to COVID-19, you are not required to post Form 300A.

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For more information about this Advisory, please contact:

Robert J. O’Hara
New York
212-351-3708
[email protected]

Alison E. Gabay
New York
212.351.3731
[email protected]

*Jenna D. Russell, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Advisory.