OSHA Law Update A Hazard Communication

OSHA Proposes Intrusive and Burdensome New Injury & Illness Recordkeeping and Reporting Rule

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Last month, the Occupational Safety and Health Administration (“OSHA”) put out a press release announcing a proposed new rule that would significantly increase employers’ injury and illness recordkeeping and reporting responsibilities.  OSHA first submitted its proposal to the Office of Information and Regulatory Affairs (“OIRA”) two years ago, on November 22, 2011, but OIRA did not approve the proposed rule to advance through the rulemaking process until last month.

In essence, the proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics (“BLS”) for survey purposes.

Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public.  Dr. David Michaels, the Assistant Secretary of Labor for OSHA, has expressed publicly that “[t]his is not an enforcement initiative,” but employers are rightfully concerned about the ramifications of this new proposed rule.

OSHA’s Current Reporting Practices

Currently, OSHA compels employers to report a workplace injury or illness to OSHA or to produce injury and illness recordkeeping data to OSHA or the BLS in only four circumstances:

  1. the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
  2. the recordkeeping data (e.g., OSHA 300 logs, 300A Annual Summaries, or 301 incident reports) is requested or subpoenaed during an enforcement inspection by OSHA at the employer’s workplace;
  3. the recordkeeping data is requested pursuant to OSHA’s Data Initiative Survey specific to certain industries with high rates of occupational injuries and illnesses; and
  4. recordkeeping forms are requested by BLS for its Survey of Occupational Injuries and Illnesses, for which a select few representative employers are requested to participate each year.

In conjunction with the new rulemaking, OSHA claims that these four outlets for the Department of Labor to acquire injury and illness data are insufficient because the information is generally not collected timely, is too limited in scope, and is often not establishment-specific.  OSHA believes that the proposed rule, detailed below, would resolve these so-called insufficiencies.

Provisions of the Proposed Rule

OSHA’s new Recordkeeping rule proposal contains three major provisions:

  1. Requirements for Large Employers (250+ Employees):  If implemented, the new rule will require employers who had 250 or more workers (including full-time, part-time, temporary, and seasonal workers) at peak employment during the prior calendar year to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report.  OSHA would then post the data on its public website after redacting only injured employees’ identifying information.  Employers will submit this information through a secure website using direct data entry into a template form or by uploading electronic documents already maintained by the employer.  Approximately 38,000 private employers nationwide would be covered by this provision, and OSHA predicts the cost to each of these employers would be only approximately $183 per year.
  2. Requirements for Small Employers (20+ Employees):  The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize.  Employers will submit this information through the same secure website using direct data entry or through a batch file upload.  This portion of the proposed rule projects to impact approximately 441,000 employer establishments, and OSHA estimates the cost at only approximately $9 per employer per year.
  3. Requirements for All Employers:  Under the proposed rule, any employer who receives notification of a request from OSHA must submit information from its injury and illness records (i.e., 300 Logs, 301 forms, and 300A Annual Summaries) for the time periods specified in OSHA’s notification.  This provision only requires submission after notification by OSHA.  Through this provision, OSHA intends to collect data specific to certain industries or hazards.

Dr. Michaels has stated that the information collected from employers through these three data-collection provisions will be used to help employers better identify and eliminate hazards, determine where OSHA’s consultation and educational resources should be focused, and direct inspection priorities.  OSHA has also suggested that the proposed rule imposes only a slight burden on employers, because those subject to the proposed rule are already required to record the information now being demanded for production.

We anticipate, however, that the new reporting requirements and publication of employers’ records as set forth in the proposed rule will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community.

Top 5 Impacts to Industry From the Proposed Recordkeeping Rule

  1. Unforeseen (Grossly Underestimated) Costs of Compliance:  We are deeply concerned about the inaccuracy of OSHA’s cost estimates around this rule.  In addition to the burdensome steps outlined in the rule, the proposed rule will likely require employers to take additional steps outside of those described by OSHA to comply.  For instance, employers may have to revamp their recordkeeping systems if they do not already maintain their records in electronic form.  This is especially true considering that inputting the information from paper records, based on the current rule, would also take much longer than predicted by OSHA.  Indeed, OSHA’s website includes a “Mockup of Proposed Web-Based Mechanism for OSHA’s Injury/Illness Data Collection,” along with a 20-page instruction guide with sample screen shots and descriptions of the data collection process.  As you can see in this “simple” flow chart, a $183 estimate of cost per employer to comply is absurdly low.  If this process is half as “simple” as it has been to navigate through the federal government’s other recent IT experiment (i.e., healthcare exchanges under the ACA), we have a pretty good idea how grossly understated the cost estimates for compliance really are.
  2. Increased Enforcement:  For those employers having to report injury and illness data quarterly, all recordable injuries and illnesses will be in front of OSHA no more than 3 months after they occur.  Therefore, any one of those injuries or illnesses could be the basis for an OSHA inspection and citation, as it will have “occurred” within the Agency’s 6-month statute of limitations.
  3. Harm to Reputation:  The public perception of certain employers may be skewed because this reported information would be publicized.  Specifically, under the proposed rule, OSHA would only make public the basic data provided in injury and illness recording forms.  The public, therefore, could take the injury and illness data out of context, as the public would not be privy to the details behind injuries, safety measures employers adopt, how the data compares to industry averages, or any other relevant information related to the circumstances of the injury or illness.
  4. Discourage recording and reporting injuries:  Industry is raising other concerns about the proposed rule, including a risk that it could cause employers to limit what they consider to be workplace related injuries, making the reported numbers appear lower when they are published to the public.  This would decrease the amount of information at the employer’s disposal in determining how it may effectively create a safer workplace.
  5. Invasion of Employee Privacy:  Finally, industry is concerned with employee privacy.  Although employee names and other identifying information would not be published, enough information may be provided that it would be possible to determine who the employee is, particularly by those who have some relationship with the employee or the workplace.

Unanswered Questions About the Proposed Rule

There are many unanswered questions surrounding the proposed rule.  For instance, employers are inquiring as to the possible penalty associated with failure to report (likely some form of a citation).  Also, what types of electronic records will be permissible to submit to OSHA, rather than inputting the same information into the form OSHA would provide.  For more information about the proposed rule, here are links to the Federal Register notice about the rulemaking and OSHA’s designated webpage about the proposed rule.

Some employer questions and concerns may be addressed in OSHA’s public meeting on the proposed rule set for January 9, 2014.  In addition, through February 6, 2014, OSHA is accepting public comments on the proposed rule as written and several alternatives discussed in the proposed rule as published in the Federal Register.  Considering the extensive impact the proposed rule will have on employers, industry participation in the comment stage of the rulemaking process, especially with the help of experienced OSHA counsel, will be essential in driving fundamental and necessary revisions to the proposed rule.