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The Society for Human Resource Management (SHRM) is speaking out against an Occupational Safety and Health Administration (OSHA) proposed rule and supplemental notice requiring employers to submit detailed injury and illness records to be posted online for public viewing.
Under the proposed rule, the nation’s 38,000 employers with more than 250 employees (that already are required to keep records) would have to submit their data to OSHA on a quarterly basis. The 440,000 companies with between 20-249 employees that are in certain industries with high injury and illness rates would be required to submit their records to OSHA once a year.
Since the announcement of the proposed rule in November 2013, labor unions and occupational safety organizations have objected, saying the proposal could discourage reporting work-related injuries and illnesses. The groups fear employers may adopt unreasonable reporting requirements and retaliate against employees who do report.
Peg Seminario, director of occupational safety and health for the AFL-CIO, said at OSHA’s Jan. 9, 2014, public meeting that “with information being collected and made available, there are some employers that may create pressure to [drive] injury reporting underground. …To deal with those employers and those situations where this may create a disincentive to reporting because of the focus on injury and illness records of individual employers, it really is critical that the rule include a prohibition on both actions against workers who report, as well as the policies andpractices that may either discourage reporting or retaliate against workers for that reporting.”
In response to concerns like these, OSHA published a supplemental notice of proposed rulemaking Aug. 14, 2014, seeking to:
*Require that employers inform their employees of their right to report injuries and illnesses.
*Require that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome.
*Provide OSHA an additional remedy to prohibit employers from taking adverse action against employees for reporting injuries and illnesses.
SHRM and more than 60 other employer and trade industry groups have signed on to a letter to OSHA asking the agency to withdraw the rule. The letter, submitted by the Coalition for Workplace Safety (CWS), charges that OSHA’s supplemental notice lacks supporting data or evidence, seeks to prohibit conduct already prohibited, and exceeds the bounds of the agency’s statutory authority in rewriting the retaliation provisions of the Occupational Safety and Health (OSH) Act.
“This entire rulemaking, including the supplemental notice, is sorely lacking in any scientific basis, any empirical evidence, any academic literature, let alone the best available science,” said Tressi Cordaro, of counsel to the CWS and an attorney at law firm Jackson Lewis. “Rather than rely on any type of supporting evidence, OSHA merely asserts that these provisions are necessary,” she said.
“SHRM felt it was important to weigh in on the supplemental [notice] because of our concerns about the agency’s process,” said Nancy Hammer, SHRM’s senior government affairs policy counsel. “They have made assertions about employers suppressing injury reporting without supporting data and they have not provided specific regulatory text for comment. Unsubstantiated allegations of nonreporting and potential retaliation by employers is something HR takes very seriously.”
The CWS also criticized OSHA’s decision to pose a series of questions for comment, including asking for studies or reports on practices that discourage injury and illness reporting, rather than setting forth explicit regulatory text for notice and comment. “The agency should already be aware of such studies or reports and rely upon them in issuing a supplemental notice proposing to amend an existing rule in significant ways.”
Recordkeeping, Retaliation Protections Already Exist
Current recordkeeping requirements already require employers to inform employees how to report an injury or illness and require that the reporting process be prompt. “The current requirements … are simple and clear,” according to the CWS.
OSHA also proposed prohibiting employers from disciplining employees for reporting injuries and illnesses or taking “any other action that might dissuade a reasonable employee from reporting an injury.”
Section 11(c) of the OSH Act already prohibits this conduct, the group said. “In addition to attempting to create a civil penalty for discriminatory actions already prohibited by [the Act] without Congressional intent, any regulation to such effect is duplicative of the current protections already afforded by the Act. Again, OSHA has sufficient mechanisms in place to adequately protect the integrity of injury and illness data.”
The CWS pointed out that the supplemental notice would “fundamentally change” OSHA’s retaliation provisions. Under current law, OSHA has to wait for a worker to file a workplace retaliation complaint based on the whistle-blower provisions of Section 11(c) before the agency can challenge an employer’s practices in court.
Under the new proposal, OSHA would be able to cite an employer for taking adverse action against an employee for reporting an injury or illness, even if the employee does not file a complaint. “OSHA would prefer to decide when employers are engaging in adverse action rather than waiting for an employee to allege such action in a complaint. The effect of this would be to enforce the whistle-blower protections without a whistle-blower,” the CWS said.
The proposed rule would in effect allow OSHA to cite employers for policies in lieu of complaints. These policies could be safety incentive programs, post-accident drug testing and zero-tolerance disciplinary policies, for example.
The CWS contends that OSHA has been unable to establish that these types of employer policies discourage employees from reporting injuries and illnesses.
A National Emphasis Program on recordkeeping from 2009-12 included 550 inspections and numerous interviews on whether company incentives or disciplinary programs discouraged employees from reporting work-related injuries and illnesses. The CWS noted no evidence from that program is included in the supplemental notice.
Labor advocates are supportive of OSHA’s expanded proposed rule. “We applaud OSHA for following up on this important issue,” said James Frederick, assistant director for health, safety and environment with the United Steelworkers. “In fact, none of these goals of a recordkeeping system can be realized if employer practices, policies and programs are discouraging workers from reporting work-related injuries and illnesses and retaliating against them when they do.”
The Service Employees International Union (SEIU) also strongly supports the supplemental notice. “These requirements are a logical extension of existing rights provided by Section 11(c),” said Mark Catlin, occupational safety and health director for the group. “Based on the experiences of our members across our union, SEIU has concerns that some employers try to suppress the reporting of work-related injuries as a means to keep their reported injuries low.” According to Catlin, employers discourage injury reporting by using complicated reporting forms, incentive programs for low-injury rates, and discipline or threats of termination for workers who report.
“OSHA’s role as an enforcement agency is a needed and necessary component of a system to ensure proper data quality,” said Frederick. Employers who underreport workplace injuries and illnesses, retaliate against workers who report, or implement policies or practices that discourage reporting must be held accountable by OSHA through the enforcement process, he said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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