Guilty until Proven Innocent?
Late last year, the federal Occupational Safety and Health Administration (OSHA) issued proposed changes to recordkeeping and reporting requirements for many of the nation’s workplaces. Currently, most businesses must record workplace injuries and illnesses and post that report in the workplace. Additionally, hospitalizations and deaths that occur in the workplace must be reported directly to OSHA within certain timeframes. OSHA normally only views an employer’s workplace injury log (Form 300) when onsite for an inspection, or as part of the annual OSHA Data Initiative – when about 80,000 employers in generally high-hazard industries submit their summaries to OSHA. In a separate program, the annual Survey of Occupational Injuries and Illnesses, the Bureau of Labor Statistics requires about 230,000 employers to submit detailed incident information based on their Form 300 logs. That confidential information is used to calculate the yearly injury and illness rates and provide a database for researchers.
The proposed changes would require businesses to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations or losses of an eye within 24 hours. Prior to this, the regulations required an employer to report only work-related fatalities and in-patient hospitalizations of three or more employees. Reporting single hospitalizations, amputations or loss of an eye was not required under the previous rule, but now will be. All employers are subject to these reporting requirements, including employers who are otherwise exempt from keeping illness and injury records.
The types of reporting methods have also been expanded. Employers can still call OSHA’s confidential number or call the local OSHA Area Office. Now, employers will also be able to go to a website and file a report electronically. A little reported (at least in OSHA’s press releases) difference is that employer reports of illness or injury will now be made public on OSHA’s website. OSHA states this will be an incentive for employers to increase safety for their workers. OSHA recently published a supplement to the proposed rule on August 14, 2014, which indicated its intention to impose increased scrutiny to employers’ policies on reporting injuries/illnesses (focusing on "unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses"). More on that in a bit.
Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Maciel Carey PLLC, based in Washington, D.C has stated "The new rule will dramatically increase the number of incidents that employers have to report directly to OSHA, and will also dramatically increase the number of incident inspections that OSHA conducts. Experience also tells us that OSHA does not leave incident inspections without citing something….I would caution employers against this new tool (the website filing) because it will require employers to memorialize an explanation about an incident that just occurred a few short hours earlier, and about which they cannot really know enough to commit to a description in writing that may later be used against them in enforcement proceedings".
Recently, the Society for Human Resource Management (SHRM) joined more than 60 other employer and trade groups in a letter to OSHA asking the agency to withdraw the supplement to he proposed rule. Specifically, this group states that "OSHA’s supplemental notice lacks supporting data or evidence, seeks to prohibit conduct already prohibited, and exceeds the bounds of the agency’s statutory authority in rewriting the retaliation provisions of the Occupational Safety and Health (OSH) Act. The proposed rule includes many provisions already contained in OSH laws. "SHRM felt it was important to weigh in on the supplemental [notice] because of our concerns about the agency’s process," said Nancy Hammer, SHRM’s senior government affairs policy counsel. "They have made assertions about employers suppressing injury reporting without supporting data and they have not provided specific regulatory text for comment. Unsubstantiated allegations of non-reporting and potential retaliation by employers is something HR takes very seriously."
Under current law, OSHA has to wait for a worker to file a workplace retaliation complaint based on the whistle-blower provisions of Section 11(c). Under the new proposal, OSHA would be able to cite an employer for taking adverse action against an employee for reporting an injury or illness, even if the employee does not file a complaint. "OSHA would prefer to decide when employers are engaging in adverse action rather than waiting for an employee to allege such action in a complaint. The effect of this would be to enforce the whistle-blower protections without a whistle-blower," says Tressi Cordaro, counsel to the Coalition for Workplace Safety and an attorney at law firm Jackson Lewis. Furthermore, the proposed rule would in effect allow OSHA to cite employers for policies in lieu of complaints. These policies could be safety incentive programs, post-accident drug testing and zero-tolerance disciplinary policies, for example.
Marc Freedman, executive director of Labor Law Policy at the U.S. Chamber of Commerce has stated "This is a troubling rulemaking because it will make sensitive company-specific data publicly available. 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. This information will likely be used by groups who have campaigns against certain companies to create misleading and damaging impressions of these companies’ safety records."
Occupational safety and health law attorney John Martin has called this part of the proposal "the latest phase in OSHA’s antagonistic ‘regulation by shaming’ policy—amped up by a degree." Martin, a Washington, D.C.-based shareholder at employment law firm Ogletree Deakins, questioned OSHA’s proposed use of injury and illness data, saying the agency is turning recordkeeping into a "bludgeon for enforcement’s sake." That’s not the purpose of recordkeeping, he added. "It is intended as a tool to compile and track injury and illness statistics, in an effort to allow OSHA to spot trends and write better regulations. Publication of everyone’s OSHA 300 logs on a government website doesn’t do anything to advance that purpose."
My view is that this is yet another overreach by a regulatory agency to impose more and harsher impositions on an already overregulated business environment. These changes will do nothing constructive to increase worker safety; which currently enjoys sufficient protections. Apparently, OSHA, along with a few other agencies, have bought into the online bullying and unsubstantiated accusations being employed by so many today, and are writing their own protections for such behavior.