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Labor attorneys, business groups say new safety regulation is highly flawed
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The U.S. Occupational Safety and Health Administration (OSHA) will now require about 750,000 employers to submit detailed annual reports of workplace injuries and illnesses for publication online. The rule, announced May 11, takes effect Aug. 10, with initial reports due to be filed electronically in 2017.
Critics have said the publication of injury and illness reports would lead to public shaming of businesses for incidents that in some cases are outside of their control. This is information that employers already collect and is typically revealed to OSHA only during inspections or surveys. OSHA said it will cleanse the data of personal identification before posting it on the Internet.
Firms that are covered by OSHA’s record-keeping regulations and that have more than 250 employees—and businesses with at least 20 employees in certain high-risk industries—will be required to file the reports. States with their own occupational safety and health laws must adopt “substantially identical” provisions within six months, OSHA said.
The rule includes a somewhat unexpected provision adding penalties for employers that take actions deemed as retaliation against employees who report accidents. Another change from previously announced provisions is a shift from quarterly to annual reporting of safety data.
Employment attorneys and spokesmen for business organizations said that while the intent of the rulemaking is good, it will cause severe headaches for many employers. They predicted increased OSHA enforcement action against employers, and they said the rule could prompt changes in employers’ wellness incentive programs and post-injury drug-testing practices.
“This is going to be scary for employers,” said David L. Barron, an attorney with Cozen O’Connor in Houston. “It’s one thing to have your [safety] forms in an office. It’s another to place them on the Internet.”
“Employers want to do the right thing,” observed Edwin G. Foulke Jr., a partner in the law firm Fisher & Phillips in Washington, D.C., and Atlanta and a former administrator of OSHA. “But this may have the reverse effect of increasing employers who underreport incidents because of all the negative effects.”
In announcing the final rule, Assistant Secretary of Labor for Occupational Safety and Health David Michaels said it was intended to “nudge” employers to improve safety. He said making the reports public is an effective use of “behavioral economics.”
“OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public,” Michaels said. He stated that the data “will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk.” OSHA said each employer must have a “reasonable” procedure for recording injury and illness reports.
Unions Support Rule
Labor unions and organizations such as the National Employment Law Project (NELP) support the regulation. In a prepared statement released after the final rule was announced, NELP Executive Director Christine Owens praised it. “More than 4,800 workers were killed on the job in 2014; almost 3 million more suffered serious injuries,” she said. “This is an unconscionable toll of workplace disease and death for a 21st-century economy, and OSHA must do all it can to improve the safety and health of America’s workers.”
OSHA’s record-keeping regulations cover about 750,000 employers with about 1.5 million establishments, according to the agency. Already, covered businesses are required to complete Form 301 (Injury and Illness Report) and Form 300 (Log of Work-Related Injuries and Illnesses) for each qualified incident. In addition, these employers must fill in Form 300A (Summary of Work-Related Injuries and Illnesses) for each establishment each year. OSHA requires about 80,000 employers in high-hazard industries to submit summaries of their logs. These industries include manufacturing, construction and transportation but also museums and boarding houses. Since the 1990s, mining companies have had their injury reports posted online by the Mining Safety and Health Administration.
The new rule comes at a time when the Obama administration faces pressure to complete work on major initiatives in its final year. “With the clock running out on the administration, they absolutely wanted to get this out,” said John Martin, a shareholder in the law firm of Ogletree Deakins in Washington, D.C. “This is really just for union organizing,” he said, adding that the new injury and illness reporting rule reflects a key goal of organized labor.
Lawsuits, Legal Challenges
Critics said the rule will also give plaintiffs’ attorneys more ammunition. Said Foulke: “Lawyers are going to look at this and say, ‘Oh my God, they had this number of injuries,’ ” which will facilitate lawsuits.
Business groups and employment lawyers predict that the new rule will be challenged in court. They claim that OSHA exceeded its authority under the 1970 Occupational Safety and Health (OSH) Act. And they reject Michaels’ description of the regulation as a nudge to employers, characterizing it instead as a body blow.
“The rule does little to advance the shared goal of ensuring workplace safety. Instead, the new requirements will force employers to post sensitive workplace safety data without providing necessary context, which could potentially skew employers’ injury and illness trends over time and render the data vulnerable to misinterpretation,” said Jennifer Safavian, executive vice president for government affairs of the Retail Industry Leaders Association, in a prepared statement. “We will explore our options to address this flawed regulation.”
Similarly, the U.S. Chamber of Commerce suggested that litigation will ensue. “I think there’s a strong chance that there will be a legal challenge,” said Marc Freedman, the chamber’s executive director of labor law policy. The organization claims that OSHA lacks the authority to publish employer records and to enforce new retaliation provisions. “They’re giving themselves the authority to write a citation,” Freedman said. “It’s not in the [OSH] statute.”
Said Patrick J. Miller, an attorney with Sherman & Howard in Denver: “OSHA is becoming an enforcer of employment laws. It’s something they’re not equipped to do.”
What Should Be Reported
The regulation presents a conundrum for employers. In the past, when employers were not sure whether to consider an injury or illness as recordable, they tended to land on the side of recording, attorneys say. The reports and logs usually remained filed away and unseen by the government, let alone the public. But the calculus has changed. If an employer reports too many routine incidents, such as minor scrapes and burns, the numbers suggest that the business is an unsafe workplace. If an employer implements effective safety programs resulting in a low tally of reportable incidents, the numbers suggest that the company is suppressing injury and illness reports.
“Just because a company reports injuries, that doesn’t mean that they have a lousy safety program,” Foulke said. “Accidents happen. We’re all human.” He said he has conducted many record-keeping audits for employers and believes that “there is probably more over-reporting than underreporting” of injuries and illnesses because employers want to be fully compliant.
Eric J. Conn, founding partner of the law firm Conn Maciel Carey in Washington, D.C., is now urging employers to “make sure you’re not over-reporting” incidents. “Employers should continue to take a very serious look at every injury and illness in the workplace and make a judgment about whether it’s reportable,” he said.
Conn added that many employers likely will start using medical professionals—either in-house or on a contractual basis—to evaluate accidents and illnesses to help determine whether they should be reported. Some minor incidents could go either way, he said. Sometimes it comes down to whether a doctor prescribes a medication or suggests the use of an over-the-counter medicine. “I don’t think that [medical evaluation] should be part of the equation,” Conn said, but the OSHA regulation has transformed the environment in which employers manage safety and health.
“Make sure that the people filling out these reports are trained,” Barron advised.
Even careful reporting provides no guarantee that the data will be used properly, critics say. They are concerned that OSHA will fail to scrub the employer reports of details that could identify individual employees, which could prompt workers to file violation-of-privacy lawsuits against their employers. “Given the sheer amount of data, I think it’s inevitable that some private employee information ends up online,” Martin said.
The anti-retaliation provisions of the new rule were added “at the last minute” after input from stakeholders, Martin said. These provisions could be particularly problematic for employers that have safety incentive programs or that require drug testing of each employee after an accident. Incentives such as offering pizza parties for a certain number of days without a reportable accident will probably be viewed by OSHA “as an active discouragement to reporting” accidents, Martin said. Requiring drug tests for those with job-related injuries also could be seen as pressure not to report an accident.
Barron said federal law already gives employees protection against retaliation for actions such as reporting injuries.
Attorneys said employers—and HR professionals in particular—should focus now on three areas:
Barron said employers will have to “walk a balance” in filling out injury and illness reports. “You have to be extremely careful,” he said. “The data could be admissible in an injury case” in court.
Steve Bates is a freelance writer in the Washington, D.C., area and a former writer and editor for SHRM.
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