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Backlash Stalls OSHA Reporting Rule

Friday, August 15, 2014

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Widespread employer concern over the public reporting of workplace injuries and illnesses has prompted U.S. regulators to rethink the plan.

The Occupational Safety and Health Admininstration has extended the public comment period for its controversial Proposed Rule to Improve Workplace Tracking of Injuries and Illnesses.

The reason: concern that the current plan may actually backfire and lead to under-reporting and repercussions against employees who do report.

OSHA

OSHA says the proposed rule does not change current reporting requirements. It would, for the first time, make the data publicly accessible online.

The deadline for public comment on the plan, which was originally Feb. 6, 2014, is now Oct. 14.

Online Tracking

The proposal, published Nov. 8, 2013, would require employers to submit electronically the injury and illness information they are already required to keep. That data would then become publicly available online, for the first time.

The plan would affect nearly 500,000 employers nationwide. Companies with 250 or more employees would have to submit their electronic records quarterly; companies with 20 to 250 employees would submit a summary report electronically once a year. Companies with fewer than 20 employees are not affected.

The proposal is aimed at better tracking of the three million workplace injuries that occur each year in the United States. OSHA calls the current collection protocol too limited and not timely; it says that online reporting will benefit "employers, employees, the government and researchers."

OSHA

Critics of the proposed rule say it could cause employers to retaliate against employees who report recordable injuries.

"Three million injuries are three million too many," Dr. David Michaels, Assistant Secretary of Labor of Occupational Health and Safety, said in releasing the proposed rule.

Currently, OSHA has access to establishment-specific injury and illness information in a particular year only if the establishment was inspected, was part of OSHA's Data Initiative, or reported a fatality or a multiple hospitalization event.

Employer Criticism

OSHA has said that the proposed rule is not a major change, but employers clearly disagree.

In announcing the extension for comments, the agency noted that January's public meeting on the plan drew "many participants" who "expressed concern that the proposal may create motivation for employers to under-record injuries and illnesses, since each covered establishment's injury and illness data would become publicly available on OSHA's website."

Participants also were concerns that the proposal could cause "an increase in the number of employers who adopt practices that discourage employees from reporting recordable injuries and illnesses."

If that happens, OSHA says, the U.S. could end up with both more workplace injuries and illnesses and less accurate data.

Comments and Coatings

As of this week, OSHA had received more than 1,400 comments on the proposal, from individuals and large employer organizations, including the Chamber of Commerce. Many comments are the result of mass letter campaigns by critics of the plan. One critic called the plan "a means to publicly harass employers on safety."

Dunn-Edwards Corp.

Paint, coatings and adhesive manufacturing has a lower-than-average DART rate than other industries, the American Coatings Association contends.

The comments filed by the American Coatings Association raise concerns shared by other critics.

The ACA contends that "the requirements in the current Proposed Rule will do little [to] accomplish the Agency's stated purpose of improving workplace safety and health, and they raise a number of additional concerns."

ACA wants the scope of the rule narrowed to establishments with 250 or more employees and establishments with 20 or more employees that fall under the definition of a "high-hazard industry group."

ACA also proposes that OSHA target industry groups that meet a DART (Days Away From Work, Job Restriction, or Job Transfer) or 2.0 or higher, which would exclude paint, coating and adhesive manufacturing.

'Manipulated, Mischaracterized, and Misused'

ACA also contends that OSHA has not made its case that the proposed rule will improve safety and that "the potential burden and risks of public data reporting cannot be justified."

Wikimedia Commons / Compliance and Safety LLC

"Providing raw data to those who do not know how to interpret it, and without putting such data in context, invites improper conclusions or assumptions about the employer," the American Coatings Association contends.

Coating makers say that employers will be forced "to disclose sensitive information to the public that can easily be manipulated, mischaracterized, and misused for reasons wholly unrelated to safety, and will subject employers to illegitimate attacks and employees to violations of their privacy."

The association adds: "Providing raw data to those who do not know how to interpret it, and without putting such data in context, invites improper conclusions or assumptions about the employer."

(PaintSquare News bloggers Eric Conn and Robert Ikenberry have also raised concerns.)

New Tack

Now, OSHA says, it is considering amending the proposal to:

  • Require employers to inform employees of their right to report injuries and illnesses;
  • "More clearly communicate the requirement" that injury and illness reporting requirements established by the employer be "reasonable and not unduly burdensome"; and
  • Provide OSHA "an additional remedy" to prevent employers from retaliating against employees for reporting.

Individuals interested in submitting comments may do so electronically at http://www.regulations.gov, the federal e-Rulemaking Portal. Comments may also be submitted via mail or facsimile. See the Federal Register notice for details.

   

Tagged categories: Accidents; Business operations; Certifications and standards; Coatings manufacturers; Health and safety; OSHA; Regulations; Workers

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