OSHA Revises Rules and Regulations on Recording and Reporting Occupational Injuries and Illnesses

The Occupational Safety and Health Administration (“OSHA”) has implemented new rules with respect to its recording and reporting regulations under 29 CFR 1904.  The new rule requires certain employers to electronically submit injury and illness data to OSHA that these employers are already required to keep under OSHA regulations.  The new regulations also:  (1) require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarify the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and (3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

 

Although existing law prohibits employers from discharging or otherwise discriminating against an employee who reports an injury, OSHA may not act unless an employee files a complaint within 30 days of the act of retaliation.  This new authority gives OSHA the ability to protect workers who have been subject to retaliation without a complaint filed by the employee.

 

These new rules also prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.  However, according to the United States Department of Labor’s website, the new rules do not prohibit drug testing per se.  If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.

OSHA’s Proposed Electronic Recordkeeping Proposal

In November, 2013 the Occupational Safety Health Administration issued a proposed rule to improve workplace safety and health through improved tracking of workplace injuries and illnesses.  The announcement followed the Bureau of Labor Statistics’ release of its annual Occupational Injuries and Illnesses report, which estimates that three million workers were injured on the job in 2012.  The proposal is currently under review by the public.  Public comments were recently taken.

“Three million injuries are three million too many,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.  “With the changes being proposed in this rule, employers, employees, the government and researchers will have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities.  The proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.”

As stated by OSHA, the proposed rule was developed following a series of stakeholder meetings in 2010 to help OSHA gather information about electronic submission of establishment-specific injury and illness data.  OSHA is proposing to amend its current record-keeping regulations to add requirements for the electronic submission of injury and illness information employers are already required to keep under existing standards, Part 1904.  The first proposed new requirement is for establishments with more than 250 employees (and who are already required to keep records) to electronically submit the records on a quarterly basis to OSHA.

OSHA is also proposing that establishments with 20 or more employees, in certain industries with high injury and illness rates, be required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.  Currently, many such firms report this information to OSHA under OSHA’s Data Initiative (ODI).

OSHA plans to eventually post the data online, as encouraged by President Obama’s Open Government Initiative.  Timely, establishment-specific injury and illness data will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.  Additional information on the proposed rule can be found at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=24002 and www.osha.gov/recordkeeping/proposed_data_form.html.

Under current OSHA regulations, construction industry employers with more than ten employees must record work-related injuries and illnesses using specific OSHA forms.  These employers are required to keep an injury and illness log and post a summary of work-related injuries and illnesses in the workplace for all employees to review (former employees also have the right to access these records upon request).  Currently, OSHA only collects this information if a facility is inspected, or a workplace is part of the OSHA Data Initiative.  In these instances, OSHA accepts the documents electronically or in paper format.

OSHA’s proposal would alter current practice by making submission of these forms mandatory and exclusively electronic for most employers, regardless of whether they have been inspected.  The agency intends for the first time to make this information publicly available on the internet through a new, searchable online database.  OSHA has indicated it will also for the first time use the data for enforcement purposes.

At first glance, this proposal appears to be of little consequence as it only requires reporting of data electronically.  However, OSHA’s plan to make this data available online has garnered considerable response, favorable, but mostly unfavorable.  For instance, Associated Builders & Contractors, Inc., a national trade association, opposed the proposal for a number of reasons.  It fears that OSHA’s announced intention to collect and publicize confidential business information—including but not limited to employer-, location-, and incident-specific injury and illness data—will lead to misuse and abuse by the agency itself, and by those outside the agency (including labor unions, competitors, plaintiff’s attorneys, etc.);  the injury and illness data that OSHA is planning to post on the internet is an unreliable measure of any individual employer’s safety record;  OSHA’s proposed database will likely be misused by those aiming to threaten or disrupt the security and overall operations of merit shop employers, resulting in improper assumptions and conclusions;  OSHA’s proposed rule does nothing to achieve the agency’s stated goal of reducing injuries, illnesses and fatalities; OSHA’s proposal reverses the agency’s commitment to a “no-fault” recordkeeping system; and once recordkeeping data is used against employers (by the agency or other entities), many companies will rethink how (and to what extent) injuries and illnesses should be recorded.  Even if employers are fully compliant with OSHA’s recordkeeping and reporting requirements, the agency’s proposal could lead to widespread underreporting of injuries and illnesses.

On the other hand, the American Industrial Hygiene Association President Barbara J. Dawson, CIH, CSP, released a statement supporting the proposal: “While much depends on the details of the proposed rule, AIHA supports OSHA’s efforts to protect workers by making employee injury and illness records public, as this will more effectively prevent workplace accidents and illnesses.  The proposal will increase the focus of senior managers on injury and illness data and encourage employers to do the right thing for their workers.  We will closely review the proposed rule and seek input from our members and other stakeholders as we put together formal comments on the proposal.”

However, my research appears to show that more oppose the proposal.  Sheena Harrison, writing for Business Insurance (www.businessinsurance.com/article/20140706) noted, “While OSHA thinks the reporting requirement would improve corporate safety information tracking, groups such as the American Society of Safety Engineers, the Risk & Insurance Management Society Inc. and the U.S. Chamber of Commerce say they want OSHA to scrap the proposal—or at least eliminate the plan to post employer safety data online.

“‘This isn’t about trying to abrogate requirements by OSHA or anyone else,’ said Richard Rabs, chairman of RIMS’ external affairs committee.  ‘This is really just saying when you’re going to put information out there in the public domain, we need to make sure that everyone’s playing with the same rules and everyone interprets things the same way.’”

The most prevalent concern is the public access to such data.  As noted by Ms. Harrison, “RIMS, the U.S. Chamber and ASSE submitted comments to OSHA earlier this year requesting that the agency withdraw or revise the rule.  They cited concerns over potential underreporting of injuries and illnesses; the possibility that OSHA, unions or other groups could target companies based on their public safety data; and worries that the new reporting standard would increase costs for employers.

“In particular, Des Plaines, Illinois-based ASSE is concerned that requiring companies to submit public data to OSHA will cause many firms to focus only on OSHA compliance rather than being proactive in trying to reduce workplace safety hazards, said Dave Heidorn, ASSE’s manager of government affairs and policy.  While companies with strong safety programs probably would report accurate injury and illness data to OSHA, Mr. Heidorn said companies with weak safety track records likely would underreport accidents to avoid appearing unsafe.  ‘It’s going to incentivize not reporting, which is not good safety at all,’ Mr. Heidorn said.

“Marc Freedman, executive director of labor policy at the U.S. Chamber of Commerce in Washington, said OSHA’s proposal would make companies susceptible to harassment by unions and ‘activist groups.’  In comments to OSHA, the chamber argued that OSHA’s rule would lead to ‘unjustified shaming of employers’ rather than increased safety.

“‘We see it as putting out information that doesn’t accurately reflect the employers’ safety program and safety record,’ Mr. Freedman said.

“Experts say they think much of the opposition to OSHA’s proposed rule would lessen if the agency agreed to remove the portion that would make safety data publicly available online.

“RIMS noted that making OSHA data public would fail to include how accidents occurred or who was at fault.  For example, a fatal vehicle accident involving workers from two companies would be reported as a fatality for both companies, no matter which one was at fault, it said.  ‘Your record may not really reflect your safety standard,’ said Mr.  Rabs, who also is vice president of insurance and risk management at Veolia Environment North Carolina in Chicago.”

OSHA has responded stating that it will take into consideration these concerns as it works preparation of the final rule.

The Seaman’s Protection Act, 46 U.S.C. 2114

Enacted by Congress in 1984, it was “intended to facilitate Coast Guard enforcement of maritime regulations . . . by guaranteeing that, when seamen provide information of dangerous situations to the Coast Guard, they will be free from the “debilitating threat of employment reprisals for publicly asserting company violations” of maritime statutes or regulations”

As originally written, the Act prohibited a vessel owner from discharging or in any manner discriminating against a seaman because the seaman in good faith has reported or is about to report to the U.S. Coast Guard a statutory violation.  The Act provided that a seaman who believed he was the subject of such discrimination could bring an action in federal court and seek appropriate relief including restraining actions that Act prohibits, reinstatement of the seaman’s employment and pay, and costs and attorney’s fees.

In 2010 the Act was amended to broaden its protections.  Not only is the seaman who reports violations to the U.S. Coast Guard protected, but so are seamen who have refused to perform duties because of reasonable apprehension that performing such duties would result in personal injury, testified in any proceeding brought to enforce a maritime safety law, notified or attempted to notify the vessel owner or Secretary of Transportation or a work related illness or injury, cooperated with or furnished the National Transportation Safety Board with information or accurately reported hours of duty.

The 2010 amendments, however, require that the seaman, instead of proceeding with a lawsuit in federal court, must now pursue his remedy through the Occupational Safety and Health Administration regulations and process.  49 U.S.C. 31105.  The complainant has several thresholds he must meet to succeed.  The person making the claim must first establish that he is a seaman as defined by the courts in the context of the Jones Act.  Next, he has to show that his report of an unsafe condition or statutory violation was made in good faith.  He only needs to show he reasonably believed that violation occurred, and does not have to prove that a law was broken.  Last, he has to show causation, i.e., his termination or retribution by his employer was the consequence of his report.

Pursuant to the OSHA procedures, the complainant may file his complaint with the Secretary of Labor.  The Secretary will notify the employer and after due process, a hearing held.  If the Secretary finds that the employer was in violation of the SPA it can order the employer to stop the action, reinstate the seaman with pay and privileges previously enjoyed, order payment of compensatory damages, special damages sustained as a result of the discrimination, require the employer to pay litigation costs, attorney fees, and award the seaman punitive damages not to exceed $250,000.

Vessel owners take note.  In years past seaman, fearing retaliation and loss of job security, may have kept quiet.  However, in the wake of the Deepwater Horizon explosion where investigators alleged that concerns voiced by the men on the drill floor that corners were being cut to save time and money at the expense of safety, public consciousness has been revived and we can expect enforcement actions to increase in frequency.

Compliance and Safety asks “Is OSHA A Wasteful Regulatory Nightmare OR Common Sense that Saves Lives?”

Here is an interesting infographic from the good folks at Compliance and Safety.  The graph asks, “Is OSHA A Wasteful Regulatory Nightmare OR Common Sense That Saves Lives?

OSHA Infographic