Workers groups and unions support OSHA's reporting requirements, while industry groups claim the information will be used against companies.

Unions, Worker and Safety Groups, Business Groups, Attorneys Respond to New OSHA Reporting Requirements

May 11, 2016
A number of worker and business groups have reacted to the release of OSHA’s final rule on Tracking of Workplace Injuries and Illnesses, commonly referred to as “electronic recordkeeping.”

American Society of Safety Engineers (ASSE): Rule Cannot Advance Worker Safety As Well as OSHA Hopes

“ASSE reiterates its concern that OSHA’s Electronic Recordkeeping rule cannot advance worker safety as well as OSHA hopes," says ASSE President Michael Belcher. "The rule's emphasis on data collected after injuries and fatalities occur is a step backward for safety professionals who work hard to move organizations toward measuring leading indicators, which better indicate how to avoid injuries and illnesses."

Belcher notes that injury and Illness rates "were never intended to be used as a performance measurement, but that's exactly what's going to happen if they are published. Given the difficulty the DOT is having defending its Compliance, Safety, Accountability (CSA) program's publishing of motor carrier roadside inspection data, OSHA should reconsider the complex data interpretation issues even the safest employers will face when the rule goes into effect."

While companies that hire ASSE members will strive to meet this new rule as they do all OSHA rules, this standard will not affect companies that already do not adequately report these data and are not committed to their workers' safety, he adds. Most likely, the requirement that employer injury data are publicly reported will cause the worst employers to report even fewer incidents. 

"As this rule is implemented, OSHA will still need to improve its efforts to identify the worst employers so it can focus its limited resources to workplaces where the best gains in safety can and need to be achieved," Belcher says.

Associated Builders and Contractors: New OSHA Electronic Recordkeeping Rule Creates Series of Problems

“OSHA created a rule that does nothing to achieve its stated goal of reducing workplace injuries and illnesses and ignored the concerns from industry that this rulemaking will have unintended negative consequences,” said Greg Sizemore, vice president of health, safety, environment and workforce development for the Associated Builders and Contractors (ABC).

He said his group “is committed to working with our members and OSHA to create safe construction work environments. However, in departing from its current ’no fault’ recordkeeping system, OSHA has empowered itself to disseminate records and data to the public that fails to show the complete narrative of a company’s safety record or its efforts to promote a safe work environment.

OSHA has exceeded its authority by forcing companies to reveal confidential business details to the public, Sizemore added, noting that, “In the past, OSHA has recognized sensitive information, such as the number of hours worked by employees on a project, as ‘privileged and confidential.’ However, in departing from this opinion OSHA will give competitors undue access to business processes that should remain confidential.”

AFL-CIO: Welcomes OSHA’s New Injury and Illness Reporting Rules

“The new OSHA injury reporting rules will bring workplace injury and illness reporting into the 21st century and provide important new protections to workers who report injuries,” said AFL-CIO President Richard Trumka on new rules to modernize workplace injury 
reporting and protect workers who report injuries.  

Echoing some of what Assistant Secretary of Labor for OSHA Dr. David Michaels said in his remarks during a press call about the requirements, Trumpka noted, “Until now, most workplace injury records have only been available at the workplace, making it impossible to know which employers have bad or good injury records.”

Employers in high hazard industries now will have to electronically submit a summary of their firms’ injuries and illnesses to OSHA each year, and large employers will have to submit more detailed injury and illness information, Trumka said, with OSHA, workers and the public will have access to this information.

According to Michaels and Trumka, this new transparency will assist OSHA and workers in identifying hazardous workplaces. In addition, employers will be able to compare their records with other employers in their industry and public health officials and researchers will be able to identify emerging trends, which could help prevent future injuries, illnesses and deaths.

“We are pleased that the new rules also include important protections to ensure that workers can report injuries without fear of retaliation,” said Trumka. “For far too long, in an effort to keep reported injury rates low, employers have retaliated against workers for reporting injuries, disciplining them for every injury or creating barriers to reporting. Now these violations will be subject to citations and penalties.  With these stronger protections, workers will be more willing to report injuries, which will help with overall prevention.

National COSH: Accurate, Timely Reporting is Necessary to Prevent Workplace Injuries and Illnesses

“Accurate and timely reporting of on-the-job injuries and illnesses is one of the best tools we have to learn how to make workplaces safer,” said National COSH Acting Executive Director Jessica Martinez. “The new OSHA recordkeeping rule, announced today in the Federal Register, is an important step towards transparency. By requiring electronic submissions every quarter and making the data public, this common-sense regulation will help us learn more about how workers are hurt and become sick on the job.”

According to Martinez, “The more we know, the more we can do to prevent injuries and illnesses from happening in the first place, with effective safety programs centered on worker participation."

U.S. Chamber: Responds to OSHA’s ‘Misguided Regulation Requiring Employers to Report Injuries and Illnesses’

“The [U.S.] Chamber is deeply disappointed that OSHA has finalized this misguided regulation,” said U.S. Chamber of Commerce Senior Vice President of Labor, Immigration and Employee Benefits Randy Johnson. “Instead of improving workplace safety, this will only create a new filing requirement that will lead to sensitive employer data being published without context or explanation. The agency’s excessive reporting requirements will lead to employers being falsely branded as unsafe and will not reflect a company’s commitment to maintaining a safe workplace. Additionally, OSHA’s obsession with shaming employers has not lead to better results in workplace safety and this regulation will not change that trend.”

Johnson claims OSHA lacks the statutory authority to publish employer records and also does not have the authority to enforce the changes it has made to the enforcement of whistleblower claims. He said the new regulation will allow whistleblower charges to be brought “without an employee filing a whistleblower claim, meaning there could be whistleblower penalties without a whistleblower.” 

The chamber claims that unions will use the records in “mischaracterizing employers in organizing and corporate campaigns, and trial lawyers bringing frivolous lawsuits,” he said. “Organized labor – who asked for this regulation – will exaggerate minor incidents to create the impression of an unsafe workplace. Trial lawyers will leverage these files against employers to extract settlements.  

Although OSHA has committed to removing any employee information from the submitted records, the chamber believes that given the hundreds of thousands of records the agency will receive this will be impossible. 

“This is a poorly conceived, unworkable, and unauthorized regulation that will not help protect employees that should not have been issued,” Johnson stated.

Patrick Miller, partner at the national law firm Sherman & Howard: Rule Is Flawed in Many Respects

Patrick Miller assists clients in developing and implementing safety and health programs in the workplace, including OSHA and MSHA required policies, and general employment programs. Pat routinely defends citations before the federal Occupational Safety and Health Review Commission and numerous state plan occupational safety and health boards.

He's reviewed the final rule closely and says: "Though further study of the rule will be necessary, we believe that it is flawed in many respects.  Most glaringly, the new rule contains anti-retaliation provisions. OSHA’s new rule anti-retaliation rule will allow the agency to issue citations to employers who the agency believes are retaliating against employees with respect to reporting injuries and illnesses.  What this means is that if OSHA believes that an employer’s injury reporting policy somehow dissuades employees form reporting injuries, the agency can issue citations seeking as abatement the changing of those policies."

What is worse, says Miller, if OSHA believes that an employee has been terminated for violating a reporting policy that the agency believes is discriminatory, for example, the agency can seek reinstatement and monetary relief as abatement.
"OSHA’s job should be to enforce safety and health standards, not act as a 'super-HR department' that second guesses employer policies, says Miller. "The OSH Act already prohibits retaliation for exercising rights related to safety and health. It also contains a process for asserting rights under that statute. Employees must file a complaint with OSHA. OSHA then investigates the complaint and, if it believes that retaliation has taken place, the Department of Labor can file suit against the employer. OSHA’s move with this regulation is to insert itself into that process and circumvent the well-established procedures for dealing with claims of retaliation. The burden to employers could be significant."

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