OSHA Proposal Comes Under Fire

Employers and industry groups are voicing concerns over a proposed rule that would require thousands of companies to electronically submit injury and illness data to the Occupational Safety and Health Administration on a quarterly basis. Observers say these worries are well-founded, and caution HR to prepare for ramping up OSHA recordkeeping training should the rule be finalized.  

Monday, November 25, 2013
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Employer reaction to a recently proposed rule designed to improve workplace safety and health has been swift and not very positive.

In a Nov. 7 teleconference, Assistant Secretary of Labor and OSHA head David Michaels announced the agency's proposal to amend its current recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers are obliged to keep under existing standards. The rule would compel roughly 38,000 companies with more than 250 employees to electronically submit injury and illness data to OSHA on a quarterly basis.

The rule, Michaels stressed, would not add to employers' responsibilities in terms of the actual keeping of safety records. Rather, he said, the proposed regulation "only modifies employers' obligations to send records to OSHA."

OSHA plans to eventually publish the data on its website -- minus personal employee information -- which would create the first detailed database of large companies' workplace safety information available to the public.

Rumblings from employers and industry groups began almost immediately after the Nov. 7 announcement. An article appearing on the Wall Street Journal website that same day, for instance, presented some of the concerns -- that information on injuries could be misconstrued, for example -- being voiced by industry groups and the organizations they advocate for.

Others expressed fear that some companies -- aware their safety data will now be available publicly -- will feel pressured to under-report workplace injuries.

"This is a troubling rulemaking, because it will make sensitive company-specific data publicly available," Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, told Human Resource Executive.

"The mere recording of an injury does not mean the employer was at fault, or tell the full story of what happened, or indicate the company's overall approach to workplace safety and its full record," says Freedman, adding that information on OSHA's site "will likely be used by groups who have campaigns against certain companies to create misleading and damaging impressions of these companies' safety records."

Ben Huggett, a Philadelphia-based attorney at Littler Mendelson, who specializes in workplace safety and health, echoes those sentiments.

"As these records will now be publicly available on OSHA's website -- and potentially used against companies by competitors, organized labor seeking to represent employees and other organizations with adverse interests -- we can expect that employers will engage in even closer scrutiny and critical decision-making [as to] whether a case is actually recordable under the rules," says Huggett.

"Because the ultimate recordkeeping decision is the good-faith obligation of the employer, we can expect more charges of under-recording when cases are rejected."

HRE's requests for comment from OSHA were not returned, but Michaels told the Wall Street Journal he was confident under-reporting would not be an issue, as the proposed approach would become a "self-correcting mechanism."

Employees "will be able to tell if employers are under-reporting," said Michaels. Thus, companies "are going to pay more attention to the accuracy of the data."

Despite such assurances, employer concerns surrounding the proposed reporting requirement "are well-founded," says Bradford Hammock, a Reston, Va.-based partner with workplace-law firm Jackson Lewis.

"The data collected only demonstrate a small piece of a company's safety and health efforts," says Hammock. "Yet, depending on the results of a particular quarterly report, companies may be painted as 'bad' or 'good' employers on safety and health, irrespective of the totality of their safety and health-management system. The rule, if finalized, continues a trend by OSHA to overemphasize lagging indicators, such as injury and illness rates, at the expense of leading indicators."

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Should the rule be finalized, HR professionals "will need to ramp up OSHA recordkeeping training," he says, "and commit more resources to ensuring that all work-related injuries and illnesses are appropriately recorded.

"In many organizations," continues Hammock, "HR professionals take the lead in OSHA recordkeeping and ensuring the accuracy of a company's records. This rule will shine a brighter spotlight on recordkeeping practices -- particularly for larger companies -- and HR professionals will need to respond accordingly."

HR leaders responsible for maintaining safety records would also be charged with learning whatever electronic protocols are implemented, ensuring there is compatible technology and software for the reporting company, and uploading the records each quarter, says Huggett.

In addition, some HR personnel would be required to recreate all information electronically, or otherwise make their procedures strictly electronic, "because the current rules allow paper records, and the new rules would not include a paper option," he says, adding that "the new rule would eliminate the ability of employers to use equivalent forms as presently provided for in the recordkeeping regulations."

Ultimately, OSHA will likely issue a final rule on electronic submission of injury and illness data -- with some modifications, says Huggett.

For instance, "limiting the submission and collection the Form 300A Annual Summary data, as is currently collected in the OSHA Data Initiative, would make the most sense in terms of OSHA's stated goals and would require the least additional agency resources," he says. 

"A broader rule would be needlessly duplicative of the information already gathered and analyzed by the Bureau of Labor Statistics," says Huggett, "with only the insufficient benefit of more timely data justifying OSHA's redirection of its scarce budget and personnel resources to collecting and analyzing this data."

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