On March 11, OSHA published their long-anticipated final rule, “Improve Tracking of Workplace Injuries and Illnesses”, just two weeks after being reviewed by the White House Office of Management and Budget. The workplace injury reporting and record-keeping rule proposes more frequent data collection from employers and remains a subject of interest and controversy in the public sphere.
What’s been changed
Under the current regulations, employers are only required to record and maintain illness and injury reports, while individual employees and OSHA may request records. Although OSHA already posts injury and illness data for nearly a quarter million work sites, this information is given, for the most part, voluntarily; the final rule requires businesses to send all data electronically to OSHA. The data will then be published online through a government-maintained, searchable database and made available to both the public and special interest groups.
This rule applies to employers with over 250 employees, who must submit all records to OSHA every three months. The final rule requires smaller businesses (20-249 employees) to comply by electronically submitting an annual summary form if the industry is considered highly hazardous, such as metalworking and chemical manufacturing. In addition, employers are now prohibited from retaliating against employees who report workplace injuries or illnesses–whether through termination, pay cuts, or unfavorable job reassignment– and must inform employees of their right to do so, along with establishing a reasonable procedure for reporting.
Although the final rule does require a significant and unprecedented increase in data reporting, the employer’s obligation to keep records of injury and illness remains unchanged.
Mixed reactions
OSHA first released the proposed rule in November 2013, and has since faced considerable opposition from various stakeholders. While OSHA and other occupational safety advocates expect the new rule to bring stronger adherence to safety laws, many believe it to be another extension of the “regulation by shaming” strategy adopted by OSHA since Dr. David Michaels was appointed Assistant Secretary of Labor for Occupational Safety and Health in 2009.
The complaints have largely centered around privacy issues and concerns about possible repercussions of such a large amount of data being made public through mandatory disclosure. The U.S. Chamber of Commerce has issued a statement criticizing the final rule for the following reasons:
- The rule is arbitrary given OSHA’s inconsistent position on confidentiality
- Violates employers’ 1st Amendment right to refrain from speaking, as well as the 4th Amendment prohibition of unreasonable searches and seizures
- Publishing private, proprietary information may prove harmful to employers and employees
- Gives special interest groups the opportunity to distort or misconstrue this information
- OSHA’s cost-benefit analysis has overstated the benefits while underestimating the costs
- Does not call for any action to be taken if false or inaccurate information is published by mistake
On the other hand, many continue to support OSHA’s regulatory actions in the hopes that transparency will serve to protect the interests and rights of American workers, and that the data will be utilized to identify patterns in workplace injuries. United Steelworkers (USW), the largest industrial labor union in the U.S., recently praised OSHA’s final rule for the following reasons:
- Electronic posting allows for easier access to critical data
- Helps ensure the accuracy of workplace injury reporting and holds employers accountable for under-reporting
- Better prepares management officials, unions, and workers to identify hazards and prevent injuries
- Workers can report occupational illnesses or injury without fear of retaliation
The OMB’s review, which had been pending since October 2015, is a sign that the final rule may be published in the near future by the Federal Register. The rule is expected to take effect on July 1, 2017.
