May 25, 2016

Industry Details Strategy To Stymie OSHA’s Electronic Reporting Rule

Industry groups are laying out a multi-part strategy aimed at stymieing — and eventually rewriting — OSHA’s recently finalized electronic recordkeeping and reporting rule, signaling the measure will face significant opposition in Congress and the courts as the Obama administration prepares to leave office in the coming months.

Testifying on behalf of the Coalition for Workplace Safety, a group of large trade associations and businesses, David Sarvadi told a House Education and the Workforce Committee panel May 25 that the rule should be “shelved till details of the program can be developed in conjunction with employers who have to use the system.”

Lisa Sprick, president of an Oregon roofing company who testified on behalf of the National Roofing Contractors Association, said in her testimony to the subcommittee on workforce protection that OSHA should create a “taskforce” that would include employers and others to help rewrite the rule to account for industry concerns.

In addition, Sarvadi said the agency should be “prohibited from publishing specific case data” on injury and illnesses that the rule currently requires.

And Sarvadi urged Congress and the courts to block an especially controversial — and in his view unlawful — provision in the rule that allows OSHA inspectors to issue citations for retaliation against whistle blowers, an approach that critics say upends current statutory requirements that require whistle blowers to first petition the agency to enforce against unlawful retaliation.

“Eventually people with different viewpoints may be in charge and they may not like what may be allowed under their loose interpretation,” Sarvadi warned OSHA’s supporters.

While GOP lawmakers appeared to support industry calls for OSHA to rewrite the rule to account for their concerns, they appeared to stop short of explicitly backing many of Sarvadi’s calls for blocking the rule and its implementation.

“We owe it to working families to hold the administration accountable for its misguided policies and to call on OSHA to take a more responsible, effective, and collaborative approach,” subcommittee Chairman Tim Walberg (R-MI) said in his opening statement.

Walberg’s limited support for industry calls may have been driven by a new report from the Government Accountability Office (GAO), released by Democrats at the hearing, that appears to offer strong support for the rule.

The report, “Additional Data Needed to Address Continued Hazards in the Meat and Poultry Industry,” called for several agencies, including OSHA to gather additional data to address continuing hazards in the meat and poultry industry to address a growing number of injuries in the sector despite an overall industry decline.

“Federal data show a decline in injuries and illnesses, yet meat and poultry workers continue to face hazardous

conditions,” the report found, noting that the rates of recordable illnesses and injuries in the meat and poultry industry remained higher than those of manufacturing from 2004 through 2013.

The report called for improved recordkeeping and reporting in the meat and poultry industries and detailed OSHA difficulties obtaining data from the industry. Specifically, it called for OSHA to study how it could regularly gather data on injury and illness rates among sanitation workers in the meat and poultry industry and for NIOSH to study “the injuries and illnesses these workers experience, including their causes and how they are reported.”

“Given the challenges to gaining access to this population, NIOSH may want to coordinate with OSHA to develop ways to initiate this study,” the report says.

OSHA said in its response to GAO that it agreed with the recommendation but raised concerns about how it should be implemented

Critics Concerns

Despite relatively limited public support for the industry strategy to reverse the rule, Walberg nevertheless signaled significant sympathy for industry concerns, including the rule’s failure to contextualize incidents, potential for privacy violations and imposition of significant costs.

“This regulatory scheme designed to shame employers will do little–if anything–to advance the cause of worker safety,” he said.

“What it will do is make it easier for Big Labor to organize, and for trial lawyers to bring frivolous lawsuits. The agency will need to spend millions of dollars on this special interest tool, which will shift scarce resources away from proactive policies to improve safety, such as inspections and compliance assistance programs. And in the process, the agency is jeopardizing the privacy of workers’ personal information,” he added.

OSHA’s rule, which was published in the Federal Register May 12, generally requires businesses to submit electronically to the agency many injury and illness records that they are currently required to maintain internally. The agency plans to publish the data though without revealing any personal details.

But the measure has drawn significant concern from industry groups, who say the agency lacks legal authority to disclose the data which they expect will unfairly tarnish companies’ reputations and discourage illness and injury recording and reporting.

Industry officials have also been concerned over provisions that strengthen OSHA authority to enforce against employers that discourage injury reporting or retaliate against workers who do report.

OSHA chief David Michaels has defended the measure as legally justified and will encourage employers to provide safer workplaces — despite industry assertions that the publicizing such data will deter injury reporting.

“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.”

But Sarvadi, in his testimony, stressed that the rule is not needed, charging that the current Bureau of Labor Statistics (BLS) method for assessing workplace safety and health trends is adequate and has long shown a decline in injuries and illnesses. “OSHA and BLS could certainly spend a lot more money trying to capture more of what some believe are the cases that are not recorded or are incorrectly recorded, either by omission or misclassification. But the additional data will not change the essential characteristics of the picture of workplace injuries and fatalities,” he said.


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