President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year — a 7 percent increase from fiscal 2015. Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the
As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer…
As the clock ticked down and the apple dropped to start a new year, many of us reflected on the year that had passed and our resolutions and New Year’s wishes for the upcoming year. Probably not many of you were thinking about your resolutions and New Year’s wishes as they related to everybody’s favorite regulatory agency, OSHA, so let us do that for you. Here are three New Year’s wishes about OSHA enforcement that the national OSHA Practice Group at Epstein Becker & Green hopes to see come true in 2014 for our clients and friends in Industry:
1. We wish for OSHA to drop or amend its proposed changes to the Injury & Illness Recordkeeping rule.
Late last year, OSHA proposed some major changes to its Injury and Illness Recordkeeping regulations. 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 in a special survey. 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. Here are the major provisions of the proposed rule:
- Requirements for Large Employers: The new rule will require employers with 250 or more workers 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.
- Requirements for Small Employers: 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.
We anticipate that the new reporting requirements and publication of employers’ injury records will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community, including: (i) extraordinary burden on employers to comply; (ii) more inspections and citations by OSHA; (iii) discourage employers from recording all recordable injuries; (iv) invasion of injured employees’ privacy; and (v) harm to employers’ reputations. 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. For more information about the proposed rule and its potential impacts, check out our article from last month.
Our New Year’s wish for the regulated community is that this rule not be implemented, or at least for the “publication” element of the rule to be stricken. OSHA is accepting public comments on the proposed rule as written and several alternatives 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.
2. We wish for OSHA to change the way it implements the Severe Violator Enforcement Program to respect Constitutional Due Process.
As one would expect for a program designed for recidivists, the punitive elements of OSHA’s Severe Violator Enforcement Program (“SVEP”) are significant, including: (a) inflammatory public press releases branding employers as a “severe violators”; (b) adding employers’ names to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) enhanced terms in settlements (such as corporate-wide abatement, requiring third party audits, etc.).
Our major frustration with the SVEP is not with the severity of the consequences, it is with the timing in which employers are “qualified” into the Program. As OSHA currently implements the SVEP, employers are qualified into SVEP before final disposition of the underlying citations. In other words, employers begin to face the harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP. We have written extensively about the SVEP here on the OSHA Law Update Blog. For more information, check out any of these articles.
Our New Year’s wish that OSHA amend the Severe Violator Enforcement Program to delay qualifying employers into the Program until the underlying qualifying citations become a Final Order of the OSH Review Commission. In the alternative, we wish for a Court to evaluate and strike down the Constitutionality of this element of SVEP.
3. We wish for OSHA to revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at non-union worksites.
Last year, OSHA issued a formal Interpretation Letter of its regulation governing who may participate in OSHA walkaround inspections (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees).…
February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the industries partially exempted from OSHA’s Injury & Illness Recordkeeping regulations…
Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide. In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”). NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses. March 8, 2014 is now the deadline by which all interested parties must submit comments
on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014. For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).
OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances. That is hardly the most troublesome element of the proposed new rule, however. OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason. Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming. Employers, therefore, are rightfully concerned about the rule.
Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:
- Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed. Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, the public could jump to incorrect and harmful conclusions about the employer.
- Unions will almost certainly use the out-of-context injury and illness information to mislead employees to facilitate organizing campaigns or to advance their interests in contract negotiations.
- The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving the precise opposite result OSHA was hoping to achieve.
- Publication of injury and illness records may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.
- OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault. OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control. This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.
Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule. The literature included with the proposed rule suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense. Most employers, however, particularly small businesses, still keep injury records in hard copy. Therefore, the time and expense to comply with the new rule will be far greater than predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year.…
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:
- the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
- 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;
- 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
- 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:
- 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.
- 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.
- 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
- 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, …
February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the exempted industries…