May 11, 2016

Facing Suit, OSHA Chief Offers Broad Defense Of New Injury Reporting Rule

Facing an almost certain legal challenge from industry groups, OSHA chief David Michaels is offering a broad legal and policy defense of the agency’s new rule requiring facilities to report worker injury data, arguing the measure is legally justified and will encourage employers to provide safer workplaces, despite industry assertions that the publicizing such data will deter injury reporting.

“We are very comfortable that we have the statutory authority to do this,” Michaels said on a May 11 conference call with reporters, noting that the OSH Act gives the Labor Department authority to compile, analyze and publish injury data. He added that OSHA’s authority for the rule “is pretty straightforward.”

His comments refer to the agency’s final rule revising its “Recording and Reporting Occupational Injuries and Illnesses” regulation to require employers in certain high-hazard industries to electronically submit workplace injury and illness data to the agency.

Released May 11, OSHA will publish the rule in the Federal Register May 12. The promulgation date is significant because it is well before the estimated May 23 deadline agencies must meet if they are to avoid a possible Congressional Review Act challenge — though any such effort will likely require presumptive GOP nominee Donald Trump to win the presidential election and for Republicans to retain control of both the House and the Senate.

In his conference call with reporters, Michaels argued OSHA’s new reporting rule will strengthen the agency’s enforcement against employers who fail to provide safe workplaces, and that publicly posting much of the data as the rule requires will pressure employers to take greater steps toward improving worker safety.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” Michaels said. “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.”

The rule also includes provisions to strengthen OSHA enforcement against employers that discourage injury reporting or retaliate against workers who do report. Michaels told reporters that employer “programs and policies that discourage workers from reporting will not be permitted and retaliation will not be permitted.”

Michaels’ defense of the rule comes as industry officials are charging that OSHA lacks statutory authority to publish employers’ data on worker injuries or to enforce the new provisions seeking to strengthen protections for whistleblowers. In a May 11 statement, the U.S. Chamber of Commerce calls OSHA’s approach “misguided,” and reiterates arguments that OSHA lacks statutory authority to publish the reported information online or to enforce new provisions aimed at tightening protections for whistleblowers.

“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 Chamber says. “OSHA’s obsession with shaming employers has not lead to better results in workplace safety and this regulation will not change that trend.”

The Chamber and other industry critics have also charged that the rule’s requirements are so broad it will force employers to provide OSHA with more data than the agency has the resources to assess. They also say the data will create a false impression about employers’ safety records because it will require disclosure of all records regardless of their value. For example, the rule does not account for fault or whether a workplace accident is the result of worker negligence.

Strengthen Enforcement

Labor and public interest groups, meanwhile, are backing the OSHA rule, saying it will strengthen enforcement and inform research on the causes of worker injuries and efforts to prevent those injuries.

The United Steelworkers, in a May 11 statement, says electronic posting of worker injury information will allow easy access to injury data, “enhancing the ability of workers, unions and management officials to efficiently identify workplace hazards and unsafe conditions and to take action to prevent future injuries.”

The group Public Citizen says,“Without access to complete and timely injury and illness data, deadly workplace hazards will go unaddressed.” The group adds, “The electronic recordkeeping rule will be critical in preventing debilitating injuries and illnesses in workers across the country.”

In the call with reporters, Michaels said that currently little or no information about worker illnesses or injuries at individual work sites is available to OSHA or made public. He also argued that employers currently lack sufficient financial incentive to adequately prevent worker injuries.

In arguing that better reporting is needed to spur safer workplaces, Michaels noted that 13 workers die in traumatic work-site incidents each day, and that more than three million workers suffer workplace injury or illness annually.

The new requirements, which take effect Aug. 10, do not change employers’ current injury and illness record-keeping obligations, but require employers to provide the data to OSHA in a standard format.

“We are taking information that employers are already required to collect and using these data to help keep workers safer and make employers, the public, and the government better informed about workplace hazards,” OSHA says in a fact sheet on the rule.

Michaels added that the additional burden of transmitting that data to OSHA will cost less than $15 million a year.

Additionally, the rule includes provisions to improve OSHA enforcement against companies that discourage employees from reporting injuries or retaliate against workers who do. “Both of those would be violations of the standard and OSHA could issue a citation and require abatement,” Michaels said.

Under the rule, employers with 250 or more workers must submit detailed illness and injury records, which OSHA will scrub for identifying information before posting certain of the data online. The rule requires companies with between 20 and 249 employees to submit summary data of workplace illnesses and injuries.

The new reporting requirements cover only about 500,000 of the nation’s roughly 7 to 8 million work sites, Michaels said. The first summary reporting is due in July 2017, and the first detailed reporting from larger facilities is due in July 2018.

“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,” Michaels said in a statement. — Dave Reynolds ()


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