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Record Keeping

Former OSHA Administrator David Michaels, who served under President Barack Obama, pens this article as a letter to President Donald Trump urging him not to sign a bill that would strip away certain employer record-keeping requirements. His article will be followed by a response from Edwin G. Foulke, Jr., who served as administrator during the presidency of George W. Bush.

David Michaels

By David Michaels

Former OSHA administrator and current professor of environmental and occupational health at the George Washington University’s Milken Institute School of Public Health.

Dear President Trump,

I ran the Occupational Safety and Health Administration for seven years as the longest serving administrator in the agency’s history. You’ve made it clear that you place a high value on the safety and health of the nation’s workers. I am writing to ask you not to sign legislation that will result in more workers being injured, legislation that will also hurt responsible employers.

You understand construction safety. As the CEO of The Trump Organization, you have erected hotels and office buildings across the country.

I don’t think you will be surprised to learn that during the presidential campaign, many reporters asked OSHA for our findings of the safety inspections of Trump Organization construction sites.

Why did you never read about that in the media? Because the inspection results were unremarkable: We didn’t find very serious hazards and the workers were pretty well protected.

On construction sites and at hundreds of thousands of workplaces across the country, employers are required by OSHA to keep an accurate log of serious (requiring more than first aid) workplace injuries, and to maintain records on each injury for five years. Since 1972, through Republican and Democratic administrations, OSHA has required employers with 11 or more employees in high hazard industries (like construction, poultry slaughter and steel production) to track worker injuries. These records are vital to injury prevention: They are road maps to understanding why workers are injured.

But last week, under the Congressional Review Act, Congress passed legislation that render OSHA’s recordkeeping requirements essentially unenforceable.

In 2012, after 40 years of enforcing this requirement, the D.C. Circuit Court of Appeals ruled that OSHA had only six months after an injury occurred to issue a citation for incomplete or inaccurate records instead of five years. The court was split, with two judges saying this was the proper interpretation of the law and one, Merrick Garland, ruling that OSHA’s regulation was not clearly written.

After that decision, OSHA’s recordkeeping violations dropped 75 percent and the major cases where employers were caught deliberately not keeping accurate records have virtually disappeared.

In the past, some of OSHA’s most impactful cases came from the identification of deliberate patterns recordkeeping violations: meatpacking, poultry slaughter, chemical processing and automobile manufacturing businesses that had hidden injuries for years or even kept two sets of books. These recordkeeping violations identified serious workplace hazards and led to important improvements in working conditions that undoubtedly prevented many subsequent injuries.

In December, OSHA issued a regulation fixing this problem that returned the agency’s enforcement policy to the way it was since 1972. This is the rule Congress voted to overturn.

Some of OSHA’s critics have claimed that this new regulation is burdensome to employers. They are wrong and they know it: The requirement to record every injury and maintain the log for five years has not changed. The new rule only changes OSHA’s ability to enforce the law.

If you sign this bill, more workers will be hurt. Some will be killed. OSHA’s injury recordkeeping rules are not simply red-tape or paperwork requirements—OSHA injury logs are the most important tool employers and workers have to find and fix the hazards that injure workers, and to evaluate their fixes to see if they actually worked.

And many law-abiding employers will be hurt too, because a firm’s injury data can have an important impact on its business success. When businesses compete for contracts—from building bridges to overhauling oil refineries—they often must show they have low injury rates. Unsafe employers lose out to firms that have better safety records.

If OSHA is handcuffed and not allowed to penalize employers who deliberately undercount their injuries, all employers will be pressured to undercount. Responsible employers who recognize that protecting the safety of their employees is a core value and maintain accurate injury records deserve a level playing field.

Firms that follow the rules should not be put at a disadvantage competing with businesses that cut corners on safety.

Overturning this regulation will also make our national injury statistics less accurate and less valuable. The Bureau of Labor Statistics (BLS) uses injury logs to estimate injury rates in different industries and sectors. These estimates are the basis for federal, state and private injury prevention initiatives, and are used by employers to benchmark their own programs.

You’ve expressed your concern about the accuracy of BLS statistics. If you sign this bill, your fears will be realized, at least in terms of injury statistics, since more and more employers will provide inaccurate data. Two former BLS Commissioners, one appointed by President George W. Bush the other by President Barack Obama, wrote a letter opposing the repeal, asserting that it “will likely have unintended and unfortunate consequences on the integrity of injury data.”

Finally, while attacking OSHA may be popular here in Washington, polling shows that Americans recognize the importance of safe workplaces and support the role of the federal government in protecting the safety and health of the nation’s workers.

In fact, OSHA is very popular outside the beltway, and is more highly regarded than most of the federal government.

When the Pew Research Center asked Americans to evaluate the performance of the federal government, setting fair and safe standards for workplaces was the second most highly rated function. And the support was equally high at 75 percent or more among Republicans and Democrats, liberals and conservatives.

I believe you want every worker to be able to return to their family at the end of their shift, safe and healthy. This is OSHA’s goal too, and the goal of many American employers.

Last month, you promised that every regulation would have to pass a simple test: “Does it make life better or safer for American workers?”

If you sign the repeal of OSHA’s recordkeeping regulation, more workers will be less safe.

Please don’t sign this bill. Send a message to the American workers who elected you. Show them you care about their safety.

David Michaels, Ph.D., MPH, is the longest serving (2009-2017) assistant secretary of labor for OSHA and served as assistant secretary of energy for environment, safety and health from 1998 to 2001. He is now professor of environmental and occupational health at the George Washington University’s Milken Institute School of Public Health.

This commentary does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. and its affiliates.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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