March 12 --Proposed changes to the Occupational Safety and Health Administration's recordkeeping rules are raising concerns, even among organizations that support the agency's ideas on electronic filing and posting employer injury and illness rates on OSHA's website.
The comment period for the notice of proposed rulemaking, “Improve Tracking of Workplace Injuries and Illnesses,” closed March 10, with more than 1,100 comments submitted.
For the most part, business organizations oppose the rule revisions, while unions and workers' rights groups back the changes. However, many on both sides say the proposed rule could worsen the problem of underreporting of injuries and illnesses.
The OSHA proposal calls for all establishments with at least 250 workers to provide electronically on a quarterly basis to OSHA their Form 300 logs, providing details about each injury and illness case, and their Form 301 injury and illness incident reports.
Large employers would also have to submit electronically their annual Form 300A report, a statistical summary of the incidents on Form 300 and information about the workforce, including the total number of hours worked and the annual average number of employees.
All establishments with 20 to 249 workers in designated high-hazard industries would have to provide electronically to OSHA the annual Form 300A report.
OSHA has proposed to publish online the log and case information for each establishment, without the names of workers and other information that could identify an employee.
In addition, OSHA is considering whether employers with multiple worksites should submit an enterprise-wide report.
Comments from opponents of the rulemaking cited the same arguments made Jan. 9 and 10 during a public meeting about the proposal:
• setting up an online database with establishments' injury and illness rates and case information will make employers targets of unfair criticism, and the information could be used by competitors and labor organizers;
• compliance costs were underestimated by OSHA;
• the privacy of injured or ill workers, especially at small worksites, could be violated because people may be able to link individual workers with the anonymous case information;
• OSHA lacks the resources to remove personal identification information from the more than 900,000 forms that will be submitted annually and
• while federal law allows OSHA to collect injury and illness information, the law doesn't permit the agency to make the information available to the public.
The U.S. Chamber of Commerce's comment supported OSHA's motivation to identify and correct workplace hazards, but criticized the method.
“As laudable as this goal is, neither the reporting nor publication of raw, disjointed data collecting disparate injury/illness data will promote this objective,” the Chamber said.
Dale Moore, executive director of public policy for the American Farm Bureau Federation, questioned how OSHA would decide if a business with a large number of seasonal workers would file annual, quarterly or no reports.
Moore gave the example of a farm with only 20 year-round, full-time workers, enough to qualify it for annual reporting. However, during peak harvest time, the farmer may need 300 workers, who'd work for one month. Moore asked whether that peak employment would require the farm to file quarterly reports.
In supporting the proposed rule, the International Brotherhood of Teamsters cited the reluctance of many employers where it represents workers to provide Form 300 information in a timely fashion. Teamsters added that when the information is handed over, it often arrives as paper printouts of computer records.
The Service Employees International Union said the rule would benefit its members.
“With the information acquired through this proposed rule, employers, employees, labor unions, the government, and researchers will be better able to identify and abate workplace hazards,” the SEIU statement said.
Change to Win, an umbrella group for several labor organizations, said making employer data available to everyone will let outside experts review companies' injury and illness information, perhaps finding trends that were previously unknown.
Citing the results of a study of the hotel industry, the Change to Win statement said that “employers--even very large ones with extensive professional human resource and safety functions--fail to learn the obvious lessons from their own records.”
Many comments on both sides of the proposal said that publishing company safety records could result in some employers not reporting all recordable injuries and illnesses in order to keep their injury and illness rates low.
To prevent that, labor groups called for OSHA to adopt tougher recordkeeping requirements.
The AFL-CIO urged OSHA to add provisions to the proposed rule that would bar “incentive programs, discipline programs or other employer programs, policies or practices that discourage workers from reporting injuries and [bar] any adverse action against an employee who reports an injury or illness.”
“The failure to include such a prohibition and enforcement mechanism in the final rule has the real potential to lead to increased actions to suppress injury reporting,” the AFL-CIO continued.
A compromise plan suggested by some submitters is for OSHA to require yearly submission of the Form 300A annual summary and drop the mandate for quarterly submission of OSHA forms 300 and 301.
Supporters of only submitting Form 300A point out that since the form doesn't include specific information about each case, there is no possibility of information about individual workers being unintentionally released. And since Form 300A would be submitted to OSHA once a year, employers would spend less time sending information to OSHA.
Requiring companies with 250 or more employers to submit quarterly their forms 300 and 301 “crosses the line when private information is being offered up to the public,” Peter Anderson, writing for the Associated General Contractors of Michigan, told OSHA. “However, requiring all companies to provide an electronic copy of their OSHA 300A on an annual basis would perhaps better focus OSHA enforcements efforts where it is really needed.”
The National Institute for Occupational Safety and Health recommended that OSHA expand the proposed collection efforts.
The enterprise-wide reporting requirement should be enlarged to include all companies with multiple establishments, not just enterprises with five or more locations as OSHA suggested, NIOSH said. Including small enterprises would allow comparison of their injury and illness rates with those of large enterprises.
NIOSH also wants to expand how OSHA defines a high-hazard industry when it comes to deciding which employers with from 25 to 249 employees must submit information. OSHA proposes to select the industries based on their days away from work, job restriction or job transfer (DART) rate for injuries and illnesses being at least two workers out of every 100 full-time positions.
NIOSH pointed out that some industries with a DART rate less than 2.0 have high fatality numbers. Instead of relying solely on the DART rate, OSHA should factor in fatality data to decide which industries are covered by the submission requirement.
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The comments are available at http://www.regulations.gov under Docket ID No. OSHA-2013-0023.
The Nov. 8, 2013, Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2013-11-08/pdf/2013-26711.pdf .
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