Proposal to Submit Injury Reports Meets Opposition

By Roy Maurer Nov 11, 2013

The Occupational Safety and Health Administration (OSHA) announced a proposed rule Nov. 7, 2013, that would require certain employers to submit their injury and illness survey data electronically to OSHA, where it would eventually be posted online for public viewing.

Employers and attorneys initially have objected to the proposal, saying the regulation would lead to “public shaming” of businesses.

OSHA is proposing to amend its recordkeeping regulations by adding three reporting requirements for the electronic submission of injury and illness information that employers are currently required to keep.

First, 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-characteristic batch files” to OSHA on a quarterly basis. This information includes the individual entries on the OSHA Form 300 and the information entered on each OSHA Form 301. The summary data from OSHA Form 300A would still be submitted annually.

OSHA said it will provide a secure website for the data collection and personally identifiable information would be scrubbed. Employers will register their establishments and be assigned a login ID and password. The website will allow for both direct data entry and submission of data through a batch file upload.

Second, OSHA would require covered establishments with 20 or more employees in certain high-hazard designated industries to electronically submit the information from the OSHA annual summary form (Form 300A) once a year. This will replace OSHA’s annual injury and illness survey, the agency said.

Third, OSHA will require all employers who receive notification from the agency to electronically submit specified information from their injury and illness records to OSHA. The requests could come at any time, could be limited to specific injury and illness data from a specific group of employers at a specific time, or be general in nature.

“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 a press teleconference.

The announcement followed the Bureau of Labor Statistics’ release of its annual Occupational Injuries and Illnesses report, which estimates that 3 million workers were injured on the job in 2012.

“Three million injuries are 3 million too many,” said Michaels. “With the changes being proposed in this rule, employers, employees, the government and researchers will have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities.” Michaels repeatedly stressed that the proposal does not add any new requirements to keep records, but that it only “modifies an employer’s obligation to transmit these records to OSHA.”

OSHA estimates that the rule will cost $11.9 million per year, including $10.5 million per year to the private sector, with costs of $183 per year for affected establishments with 250 or more employees and $9 per year for affected establishments with 20 or more employees in designated industries. However, the agency stated that “the annual benefits, while unquantified, significantly exceed the annual costs.”

Marc Freedman, executive director of labor law policy for the U.S. Chamber of Commerce, said the chamber and other employer groups would likely work against the proposed changes in the months ahead.

“This is a troubling rulemaking because it will make sensitive company-specific data publicly available,” Freedman said. “The mere recording of an injury does not mean the employer was at fault, or tell the full story of what happened, or indicate the company’s overall approach to workplace safety and its full record. This information will likely be used by groups who have campaigns against certain companies to create misleading and damaging impressions of these companies’ safety records.”

Current Rules

Certain employers are now required to keep OSHA injury and illness data. They include:

  • Employers under OSHA jurisdiction with 11 or more employees, unless the establishment is classified in partially-exempt low-hazard industries such as retail, service, finance, insurance or real estate.
  • Employers with 10 or fewer employees, including partially-exempt industries, if OSHA or the Bureau of Labor Statistics informs them in writing that they must keep records.

OSHA’s recordkeeping regulations currently cover approximately 750,000 employers with approximately 1.5 million establishments, according to agency data. Covered employers must complete Form 301 (Injury and Illness Incident Report) for each injury and illness at a covered establishment and record each injury and illness on Form 300 (Log of Work- Related Injuries and Illnesses). In addition, each year, covered employers must use the information from these forms to complete Form 300A (Summary of Work-Related Injuries and Illnesses) for each covered establishment.

Under current practices, OSHA typically only reviews an employer’s written Form 300 log as part of an inspection, or as part of the annual OSHA Data Initiative, when the agency requires about 80,000 employers in high-hazard industries to submit summaries of their Form 300 logs.

Through a separate program, the annual Survey of Occupational Injuries and Illnesses, the Bureau of Labor Statistics requires about 230,000 employers to submit detailed incident information based on entries in their Form 300 logs. That confidential information is used to calculate the bureau’s yearly injury and illness rates and provide a database for researchers.

OSHA’s Reasoning

Michaels said that this proposed rule will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry. He stressed that this is not an enforcement initiative but an “effective, nonprescriptive way to save lives and limbs.”

“Much of the [injury and illness] data never leaves the workplace, and we want to change that,” he said, adding the data will help the agency “better target” establishments with high injury rates, while allowing for “fewer inspections at employers with low rates of serious injuries.”

Attorney: Be Cautious

Some experts say employers need to carefully consider the ramifications of OSHA’s proposal.

“Although Dr. Michaels says that the proposal ‘does not add any new requirement to keep records,’ it will probably cause some employers to be more careful with their recordkeeping,” remarked Arthur G. Sapper, a partner in the OSHA Practice Group at McDermott Will & Emery, based in Washington, D.C. “Because the forms will likely require employers to electronically inform OSHA of their Standard Industrial Classification (SIC) or North American Industrial Classification (NAICS) codes, OSHA will be able to determine if the employer’s injury rate is above or below that of its industry’s. If the injury rate is substantially above the industry’s rate, a safety inspection might be scheduled; if the injury rate is substantially below, a recordkeeping investigation might be launched,” Sapper said.

OSHA’s examples of what it says it intends do with the data include referring employers who report high overall injury and illness rates to OSHA’s free on-site consultation program; sending hazard-specific educational materials to employers who report high rates of injuries or illnesses; and using the information to identify emerging hazards.

Michaels said that OSHA also could analyze the data to dig deeper into long-term changes over time in injuries and illnesses in particular industries, or gauge the effect of an OSHA intervention program targeted at a particular industry.

Celeste Monforton, a lecturer at George Washington University’s School of Public Health and a former OSHA policy analyst, has been following this issue for many years.

“Any effort that OSHA has to make it easier for their inspectors and staff to have access to injury and illness records and transforming those records into an electronic format makes sense in this day and age,” she said.

Monforton sees the proposed rule’s transfer of the data-sharing process from paper forms to an electronic format as an efficiency builder, saving records inspectors and employers from dealing with paper forms.

“I think HR departments have things to do other than filling out paper forms,” she said.

Transparency or ‘Regulation by Shaming’?

OSHA intends to make the workplace injury and illness data it collects public after “scrubbing it of individuals’ personally identifiable information.” Supporters of that idea argue that public disclosure would put more pressure on companies to comply with workplace safety rules and allow employees and the public to identify businesses with poor safety records. But opponents of the proposal say making the information public will invite distortion of a company’s safety record and allow unions or other groups with an agenda to use the data against the companies.

“Specifically, the online posting of establishment-specific injury and illness information will encourage employers to improve and maintain workplace safety and health to support their reputations as good places to work or do business with,” said Michaels.

The OSHA chief said he didn’t yet know how fast data would get posted once submitted by employers, but added “the quicker it gets posted publicly, the better.”

Using data collected under the proposed rule, employers could compare injury rates and hazards at their establishments to those at comparable establishments and set workplace safety and health goals benchmarked to the establishments they consider most comparable, Michaels said.

“Online availability of establishment-specific injury and illness information will also encourage employees to contribute to improvements in workplace safety and health,” he said.

Montforton added that mining companies have had their injury reports posted online since the 1990s on the Mining Safety and Health Administration’s (MSHA) website. There is an abundance of information on the MSHA site, which allows the public and employers to compare safety records and has pressured some companies to improve, she said.

“Employees would be able to compare their own workplaces to the safest workplaces in their industries. This could encourage employees in more hazardous workplaces to work towards improvements by showing them that the improvements are possible, while demonstrating the results of workplace safety and health efforts to employees in the less-hazardous workplaces,” Michaels said.

Montforton said the transparency would be a way for the workers themselves to be another set of eyes.

To the contention that employers may underreport data that’s going to be made public, Michaels said that he was confident the proposed approach would have the opposite effect by becoming a “self-correcting mechanism.”

“Employees will be able to tell if employers are under-reporting,” he said. As a result, he said, companies “are going to pay more attention to the accuracy of the data.”

American Industrial Hygiene Association President Barbara J. Dawson said she supports “OSHA’s efforts to protect workers by making employee injury and illness records public, as this will more effectively prevent workplace accidents and illnesses.” Dawson said the proposal will increase the focus of senior managers on injury and illness data and encourage employers to do the right thing for their workers.

But occupational safety and health law attorney John Martin characterized this component of the proposal as “the latest phase in OSHA’s antagonistic ‘regulation by shaming’ policy—amped up by a degree.”

Martin, a Washington, D.C.-based shareholder at employment law firm Ogletree Deakins, questioned OSHA’s proposed use of injury and illness data, saying the agency is turning recordkeeping into a “bludgeon for enforcement’s sake.” That’s not the purpose of recordkeeping, he added. “It is intended as a tool to compile and track injury and illness statistics, in an effort to allow OSHA to spot trends and write better regulations. Publication of everyone’s OSHA 300 logs on a government website doesn’t do anything to advance that purpose.”

What’s Next?

OSHA will hold a public hearing on the issue Jan. 9, 2014, in Washington, D.C. The public will have 90 days, through Feb. 6, 2014, to submit written comments. [Editor's note: The public comment period has been extended until Mar. 8, 2014.]

Employers would be well-advised to go over the entire proposed rule, including the list of regulatory alternatives toward the end of the document. It includes items up for discussion such as requiring monthly submissions of data instead of quarterly; expanding the scope of establishments required to report; implementing a one-year phase-in of reporting; and requiring some enterprises to collect and submit data from multiple establishments.

This alternative may impose a considerable burden on large employers and also have side effects that are not obvious at first glance, said Sapper. “Its legality is also questionable, as it would purport to impose reporting requirements on entities with respect to persons who are not their employees.”

All comments must contain the docket number: OSHA-2013-0023 or the regulatory information number (RIN) 1218-AC49. Comments may be submitted electronically through the federal eRulemaking portal, or via fax if 10 pages or fewer to (202) 693-1648. Alternatively, written comments may be sent in triplicate to: OSHA Docket Office, Docket Number OSHA-2013-0023, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, DC 20210.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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