Ferguson: OSHA's New Reporting Rule Raising Hackles

Monday, June 6, 2016 | 0

OSHA recently released a final rule on injury reporting and electronic record keeping that is raising hackles in many quarters. If you aren’t aware of the rule, this post will get you up to speed and will present an overview of the controversy.

Julie Ferguson

The rule requires that certain hazardous industries submit injury and illness data electronically, which will then be shared and publicly accessible online. In addition, the rule strengthens worker protections around reporting. Employers are obligated to inform employees of their reporting rights and must not deter or discourage injury reporting in any way, and may not retaliate against employees for reporting.

Here’s a copy of OSHA’s new rule, which was published on May 12, 2016. Here’s a brief summary excerpt:

"OSHA is issuing a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulation. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep under existing OSHA regulations. The frequency and content of these establishment-specific submissions is set out in the final rule and is dependent on the size and industry of the employer. OSHA intends to post the data from these submissions on a publicly accessible website. OSHA does not intend to post any information on the website that could be used to identify individual employees.

The final rule also amends OSHA’s record-keeping regulation to update requirements on how employers inform employees to report work-related injuries and illnesses to their employer. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The final rule also amends OSHA’s existing record-keeping regulation to clarify the rights of employees and their representatives to access the injury and illness records."

Large employers (250 ), unless exempt from reporting, are now required to submit data electronically. In addition, high hazard industries with 20-249 employees will also have electronic reporting obligations.

The electronic reporting requirements are in effect as of Jan. 1, 2016. The employee notification and anti-retaliation provisions go into effect on Aug. 10, 2016.

Proponents and opponents of the OSHA rule speak out

OSHA and labor proponents say that the new rule will modernize reporting and offer transparency that fosters safer workplaces.

"Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Most labor unions are proponents of the new rule: Teamsters Applaud New OSHA Rule to Modernize Worker Injury & Illness Report System

The new rule will go a long way in correcting a widespread problem that saw many large employers routinely withholding these reports from their own workers, in violation of OSHA’s current mandate. This will especially help the many workers in non-union companies to get this important information without fear of retaliation by their own supervisors. With this rule, OSHA will move employers into a modern, electronic reporting system to promote accurate and broad public understanding of the dangers in today’s workplaces.

Opponents say that the public posting of injury data constitutes a “public shaming” and that data may be misunderstood or exploited by competitors and other parties. In addition, employers say that the previous record-keeping process allowed revisions to injury and illness records, a process that may be unavailable now once reported. Some opponents also raise concerns about employee privacy, although OSHA says reported data will not be identifiable by employee.

The following are some initial reports of opponent concerns.

The Hill: OSHA to publicly disclose workplace injuries online.

But the National Association of Manufacturers (NAM) accused the Labor Department of “publicly shaming” companies into compliance.

“This administration put a target on nearly every company and manufacturer in the United States,” NAM Vice President Rosario Palmieri said in a statement.

“Manufacturers are supportive of regulations aimed at increasing transparency, and we pride ourselves on creating safe workplaces for the men and women who make things in America,” Palmieri said. “However, this regulation will lead to the unfair and unnecessary public shaming of these businesses. This is a misguided attempt at transparency that sacrifices employee and employer privacy.”

Business Insurance: RIMS sounds alarm on latest OSHA injury-reporting rules.

Inaccurate safety ratings, reporting redundancies and cyber exposures will result from the new rule on electronic record keeping of workplace injuries released by the U.S. Occupational Health and Safety Administration that takes effect Jan. 1, 2017, the agency said in a statement.

OSHA’s new rule requiring the publishing of employee injuries can increase litigation against an organization and can also be used against an organization by industry competitors, RIMS said in the release.

The organization is also concerned about the ambiguity of the cause of a workplace injury potentially creating misconceptions about an organization’s workplace safety, the statement said.

RIMS also listed OSHA’s web-based reporting application as an issue because of its additional cyber exposures.

Safety Health: Critics of OSHA record-keeping rule air concerns at House hearing.

Critics of OSHA’s recently released record-keeping rule, which would make worker injury and illness data public, voiced their concerns during a May 25 hearing convened by the House Workforce Protections Subcommittee.

The National Law Review: OSHA Electronic Record-Keeping Rule Creates Significant Reporting Requirements, Potential Enforcement Risks.

This article summarizes the new rule and offers compliance recommendations for employers. It also raises employer concerns:

The implications of OSHA’s new reporting requirements are significant, as the new rule creates a number of concerns and challenges due to the public disclosure of employer safety data. For one, the OSHA record-keeping process has always allowed a continuing opportunity to revise injury and illness records with new changes to the reported event. But once the injury and illness data is initially reported and disclosed, it may be difficult for employers to revise this public information. Additionally, the data may be misinterpreted or misrepresented by the media or competitors. Further, employee privacy is a concern. Although OSHA states that it will use software to remove private employee information from the disclosures before posting, the effectiveness of this software remains to be seen. Finally, the cost and resources necessary to implement electronic data collection and maintenance will be significant. OSHA’s financial estimates likely ignore the time and effort required to bring an employer into compliance, especially ones without any electronic collection procedures currently in place.

Construction Equipment: New Electronic OSHA Reporting Requirements Raise Serious Concerns.

Before, employers could only be cited by OSHA for not having a workplace illness/injury procedure in place. Now OSHA can cite an employer if the company’s procedure is not "reasonable" or discourages employees from reporting.

Before, OSHA had to wait for an employee to file a whistleblower retaliation claim to investigate the company. Now, OSHA can cite and fine employers directly, and demand abatement for alleged retaliation against employees who report workplace injuries and illnesses.

Before, employer reports of injury/illness events were in an open chronological format that allowed updates and changes to the report as needed. Now, because the electronic report will be made public at the initial filing, it may be difficult for employers to revise the report at a later date. This means the first filing will stay on the internet as it was written and later updates may or may not be easily found. This can lead to either accidental or willful misinterpretation of the information by anyone who has an internet connection.

We doubt we’ve heard the end of this story, so stay tuned.

Julie Ferguson is a marketing consultant for Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with permission from the firm's Workers' Comp Insider blog.