Concerns About OSHA’s Record-Keeping Proposal Aired

By Roy Maurer January 22, 2014

The Occupational Safety and Health Administration (OSHA) heard support for and concerns about its proposed record-keeping changes during a Jan. 9-10, 2014, public meeting that included safety organizations, employer representatives and unions.

Safety advocates fear that the public disclosure of injury and illness information would chill reporting, while employer groups questioned the exposure of companies’ proprietary information, the potential for mischaracterization of the data, OSHA’s intentions for the data, and the agency’s ability to keep it secure.

OSHA’s proposal to “Improve Tracking of Workplace Injuries and Illnesses” would amend its record-keeping regulations for electronically submitting injury and illness information that employers are required to keep.

“The main purpose of this rulemaking is to improve workplace safety and health through the collection and use of timely, establishment-specific injury and illness data,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels in November 2013.

First, the 38,000 establishments employing 250 or more workers and already required to keep injury and illness records would have to electronically submit their injury and illness case files to OSHA every quarter. This information includes the individual entries on the OSHA Form 300 and the data entered on each OSHA Form 301. The summary data from OSHA Form 300A would also be required annually in an electronic format. 

Second, OSHA would require the 440,000 covered establishments with 20 or more employees in certain high-hazard designated industries to electronically submit information from their OSHA Form 300A once a year. This would replace the agency’s annual injury and illness survey, which it characterized as not being timely or useful enough to improve workplace safety and health.

In addition, OSHA is considering mandating that companies with multiple worksites submit the Form 300A data for each site, so that the agency can calculate enterprisewide injury and illness rates.

The most controversial change may be that OSHA plans to make the information it collects public. Although publicized data would identify businesses, it would be scrubbed of employees’ personally identifiable information, the agency said. “What we’re proposing is not exactly new here,” said Dave Schmidt of the OSHA Office of Statistical Analysis, citing other federal agencies—including the Mine Safety and Health Administration and the Federal Railroad Administration—that already make similar data available online.

“We support the transition to an electronic format and agree with much of the proposed rulemaking, but a careful balance must be struck to ensure the needs of both employees and employers are met,” said Dr. Robert K. McLellan, chief of the occupational and environmental medicine division at Dartmouth‐Hitchcock Medical Center in New Hampshire, who represented the American College of Occupational and Environmental Medicine at the meeting. 

“We believe OSHA should continue to refine the language in some parts of the proposed rulemaking to ensure confidentiality protections, reduce the potential for underreporting and ensure that technology requirements don’t impose undue burdens for those complying with the new rules,” he said. Those concerns were echoed throughout the proceedings.

Potential Misuse of Collected Data

The most consistently voiced concerns of employer representatives are the fears that publicized injury and illness records would be mischaracterized and that public perceptions of employers’ safety records would be unjustly viewed out of context.

“The mere recording of an injury has no bearing on whether the employer has a strong safety program or record,” noted Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce. 

“Companies would be held accountable for recordable incidents where either the actual cause was not under the employer’s control or part of an employee’s work or it is later discovered the injury was due to other causes,” warned Amanda Wood, director of labor and employment policy at the National Association of Manufacturers (NAM). 

Freedman cited illnesses from natural causes, such as heart attacks, and automobile accidents as examples of injuries that are recorded with no attachment to employer policies, training or commitment to safety programs.

Joe Trauger, NAM’s vice president of human resources policy, agreed: “Publicly disclosing specific injury and illness data serves little public good, because it is easily misinterpreted, misunderstood and misused. It will almost certainly lead people to arrive at unfair conclusions or judgments about a company or particular industry. For a business this can be damaging at best and devastating at worst. Numbers on a page do not present an accurate picture, much less provide context.”

Opponents claimed that unions would use the collected data to pressure companies. As an example, Freedman mentioned the AFL-CIO’s 2009 request to President Obama’s transition team that OSHA provide more access to company safety and health information. 

“OSHA claims there are several benign uses of this data that may occur, but we know that this proposal will trigger malicious uses because these are already occurring without easy access to such specific information,” said Tressi Cordaro, a shareholder in the Washington, D.C., office of Jackson Lewis. 

“We can predict with high certainty that unions will use these injury records to mischaracterize employer safety programs because they already do this with less data at their disposal,” Freedman added.

As for what OSHA intends to do with the data, it may use it as the basis for targeting certain employers for future inspections, according to agency analyst Schmidt.

“Because OSHA will be using this data for targeting purposes and releasing this data to the public to be used with no context or restraints, this proposal represents OSHA abandoning the concept of record-keeping being a no-fault system,” said Cordaro, referring to the 2001 revisions to OSHA’s record-keeping requirements. At that time, OSHA instituted a presumption that if an injury or illness happened in the workplace, it would be deemed work-related; the agency considered this to be the most comprehensive way to determine work-related injuries and illnesses. The downside for employers was that injuries and illnesses that were beyond an organization’s control were also recorded. “The result was that, in exchange for capturing the broadest possible array of work-related injuries, OSHA accepted that a certain portion of these injuries would not be relevant to assessing an employer’s safety and health program. Because employers were only required to submit these records to OSHA upon request or as part of a survey, there would be ‘no fault’ attached to these injuries being recorded,” Cordaro explained.

Suggesting that every injury and accident is necessarily the business’s fault is simplistic and ignores reality, she noted.


Another negative consequence, from an employer’s point of view, is the damage that could result from disclosing a company’s sensitive and proprietary information, as well as the private health information of injured employees.

“The data OSHA will require employers to submit will contain details that many companies try very hard to keep confidential,” said Cordaro. “Specifically, many companies consider the number of employees and hours worked as proprietary information that should not be disclosed. Such information gives insight into processes and could open up companies for hostile takeover by competitors.”

Although the National Safety Council supports the rulemaking, its senior government relations manager, Luke George, voiced concern about the agency’s ability to maintain workers’ anonymity. “Although employee names will be stripped out of publicly available data, it is possible that the details included in the public data may allow for the identification of some of the victims,” he pointed out.

“While OSHA has committed to protecting the identity of employees, the agency fails to recognize that other information—such as date of injury, injured body part, treatment and job title—can be used as identifiers, particularly in a small community. This information … can be compiled to personally identify the employee,” said Cordaro.

This raises questions about whether the proposal potentially would hinder an individual’s privacy rights under the Health Insurance Portability and Accountability Act, commented Wood. “Rather than embarrass employers and employees alike, OSHA should keep the current reporting requirements in place, which will keep private and proprietary information confidential.” 

Another area of concern is exactly how employee-identifying information will be redacted in the voluminous amount of data that’s expected.

“If the agency will have to do this, it will tremendously add to their burden, further straining their already thin resources,” said Freedman. And whether anyone will trust OSHA to handle this task adequately is another question, he added.

The agency conceded that it doesn’t know exactly how the redactions will be done.

A Chill on Reporting

Many who attended the meeting stated that the publication of data on injuries and illnesses might discourage employers from recording all such incidents.

“Although OSHA claims that making establishment-specific data publicly available will encourage more accurate reporting, it is possible that it will encourage employers to underreport to avoid the stigma of publicly reporting high injury rates,” said George. The Bureau of Labor Statistics has historically maintained anonymity to encourage the most accurate reporting for its injury-and-illness survey, he added.

“This regulation will, in fact, discourage employers from erring on the side of recording injuries, since it changes the impact of that decision from virtually no penalty for overrecording to a substantial impact for choosing to do so,” said Freedman. Companies, therefore, should be expected to look for acceptable reasons for why they shouldn’t record an injury, he argued.

A Burden on Employers and OSHA

Employers also presented their worries about the cost and burden of actually submitting the injury and illness information to OSHA electronically. The proposal suggests that the agency assumes a majority of employers are already keeping their injury and illness records electronically, but many small businesses do not, according to stakeholders.

The notion that OSHA will have the resources to handle the deluge of data that will flood in each quarter is delusional, said Freedman. “This regulation will merely result in an unmanageable amount of raw data being dumped on OSHA and then put out for anyone to use as they choose.”

Measuring Injuries a Reactive Approach?

While the American Society of Safety Engineers (ASSE) supports OSHA’s desired outcome for the proposed rulemaking, we think there’s some room for improvement,” said Jim Thornton, director of health, safety and environment at Northrop Grumman and chair of ASSE’s Government Affairs Committee. 

ASSE shares employers’ concerns about the potential for “creative” record-keeping and for companies’ data—without context—being misleading. “It’s artificial to throw numbers out there without context to truly know the effectiveness of a company’s safety management program,” Thornton said.

But, ultimately, OSHA needs to find alternative measures of safety performance that are more proactive, he said. “In no way am I advocating not recording injuries. We must never lose sight of the fact that for every injury, there’s a human being involved there.”

Nevertheless, using lagging indicators such as injury rates to measure safety is like “driving while looking in the rear-view mirror,” he said. “Lagging methods are reactive and indicate failure. We’d like to see movement toward leading indicators, like measuring increased training hours or increased near-miss reporting, which, when managed well, are powerful tools that can help reduce injuries.”

To determine whether their safety programs are going in the right direction, Thornton said, most safety professionals are paying more attention to metrics that measure not what the outcomes are but indications of system improvements.

OSHA is accepting written comments on the proposed rule through March 8, 2014, at Written submissions must reference Docket No. OSHA-2013-0023.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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