OSHA's New Injury Data Disclosure Rule – Good Intentions but Questions on Execution

OSHA's New Injury Data Disclosure Rule – Good Intentions but Questions on Execution

OSHA certainly has been making waves over the past couple of years with changes, from new standards, such as the Hazcom/GHS rule and the silica standard, to a new penalty structure. But one change will have more impact than any other…

Earlier this year, OSHA published the details of a new injury tracking rule that will require establishments with 20 or more employees that already have to fill out OSHA 300 logs to electronically report injury and illness data. It goes in effect Jan 1, 2017, and this year's data has to be submitted electronically by July 1, 2017.

OSHA understands that its more than 2,000 inspectors only can visit about 80,000-90,000 establishments each year, out of the 8 million employers that exist in the United States. So, the agency had to figure out how to "reach out and touch" more employers without having to do more inspections, and what better way than to require employers to submit and publish their injury rates?

OSHA intends to make every report public, thus shaming those with high on-the-job injury and illness rates. When the announcement was made, Dr. David Michaels, assistant secretary of labor for occupational safety and health, even alluded to the potential for public shaming in a May 11 OSHA press release.

The intent is understandable, as the shift to using "behavioral economics" has seen positive results in other areas of compliance. The thinking is similar to the health ratings that restaurants receive and are required to post. Since this food safety law has been put in place in many local and state jurisdictions, foodborne illness rates have gone down, and revenues went up in those restaurants that had higher ratings.

Just like how the general public uses health department ratings to decide where to eat, so too can a potential employee decide where to work or a company can determine if it wants to do business with another. OSHA believes companies will compete for better ratings, and the general public will know if a company cannot manage their workers well while producing a good product or providing a service. Therefore, the impact of this rule will be tremendous.  

In addition to the possibility of public embarrassment, certain provisions in the new rule have caused concerns for employers. Plus, the execution of the standard faces challenges.  

Impact on Smaller Companies

Small companies and multi-site businesses likely will endure much of the fallout from this rule. Although OSHA has stricter requirements on establishments larger than 250 employees – which must electronically report more specific injury data (without the identity of the injured employee) it is these types of establishments that likely have an HR professional and/or a safety manager to handle this extra administrative duty.

But in today's business environment, companies increasingly have become efficient and leaner.

A manager for a small-sized establishment now has the expectation to assume more and more safety responsibilities. Administrative burdens can pile up fast when a small plant manager can't turn to an HR professional or safety manager for help with filling out new forms.

Closing the gap will take training and time away from running small facilities.

OSHA also inserted language into the standard to limit incentive programs and drug testing in an effort to minimize under reporting. While these provisions have caused much controversy, especially about how the drug testing provisions will be reconciled with DOT requirements and workers' compensation credits, the question has been asked: "What about non-reporting or over reporting?"

While these are not reasons not to promulgate the law, it is not uncommon to find smaller-sized establishments, especially those with closer to 20 employees, without an OSHA log. This may be due to ignorance of the law or intentional. Regardless, there will be numerous sites that fail to submit data electronically.
 
For those "smaller" establishments that are accustomed to filling out an OSHA 300 log, what typically is encountered later by safety consultants out in the field is that the manager who filled them out erred on the side of over-recording, because again, there is no safety professional to review OSHA's FAQ's and interpretation letters on recordabilty. Thus, what may occur – at least for the near future – is an incomplete or inaccurate picture of small businesses.

Impact on Insurance

One consequence from this new rule is that insurance underwriters could review this data and make decisions based on insurance coverages. While this certainly serves OSHA's intent of nudging the employer, one can argue that there is the chance of data misinterpretation by a non-safety professional or that the over-reporting of an establishment's data could be used against it during renewal of insurance policies.

Small businesses will have to be just as diligent as a larger employer in the insurance process, and use their resources in painting a fairer picture of their safety programs. After all, one can argue that OSHA 300 logs are a lagging indicator of a site's safety program. The data submitted by July 2017 for 2016 injury data does not provide a complete picture to the "evaluator" of a facility's current safety program in real time.

Enforcement

Another question is how to enforce the rule outside of an OSHA inspection. MSHA already requires all mine sites to submit quarterly injury reports, and the data is published on their Mine Data Retrieval System. However, each U.S. mine regularly is inspected at least twice each year, as there are a limited number of mines in the United States. A mine that fails to submit their data is issued a citation during an on-site inspection.

On the other hand, OSHA does not have the manpower to keep up with every establishment. There are an estimated 1.3 million establishments impacted by this law. While one of the objectives of the new rule is to streamline the targeting of industries and establishments, regional OSHA offices already are overwhelmed with filtering through the influx of accidents under the new reporting rule of 2015.

The rule definitely will provide OSHA with more data than it has ever had in the past, but the agency only will be able to be reactive in enforcing establishments to file their reports.  
It may be obvious to some that OSHA has been quite busy with announcements over the last year.

Politics may have had a play. In late 2000, an election year, the agency finalized an ergonomics rule only to see Congress and President George Bush nullify OSHA's efforts upon taking office.  

Promulgating the new reporting requirement earlier in an election year allows the agency to fast track it and avoids having to contend with a new administration taking an unfriendly stance towards the proposed changes. Even with its challenges and controversy, the rule is viewed overall as a welcome change in the safety profession as a paradigm shift in enforcement, but it remains to be seen how this rule will shape out especially for small businesses.

Chris Mancillas is senior vice president of risk control and safety for EPIC, where he is responsible for the risk control practice of EPIC's Southeast region. Prior to joining the firm in 2000, Chris served five years as an OSHA compliance officer, inspecting various companies in a wide array of industries. He also worked for two years as a radiation and biological safety specialist for the East Carolina School of Medicine. Chris is a Certified Industrial Hygienist, an OSHA authorized trainer, a certified forklift trainer, a certified fire sprinkler inspector and a certified tower climber and rescue trainer. 

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