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Comment |

Sick Over Illness/Injury Reporting Plan


By Eric J. Conn

Intrusive and burdensome are just two of the words we used in reporting earlier on OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule.

The proposal would create a minefield for hundreds of thousands of employers nationwide.

OSHA announced Jan. 6 that it would extend the comment period for the proposed rule by 30 days in response to a request from the National Association of Home Builders (NAHB).

Safety gear
Wikimedia Commons / Compliance and Safety LLC

The proposed rule makes several troubling assumptions for employers.

NAHB made the request because the reporting rulemaking overlaps with the OSHA's proposed crystalline silica rulemaking, and the builders wanted more time to disseminate the information to members and coordinate their responses.

The new deadline for comments is March 10.

Sharing Data

The proposed rule lays out several major changes, including a requirement that employers submit  their injury and illness records to OSHA electronically. The current rule requires employers to maintain these records internally, and to share them only in very limited circumstances.

That is hardly the most troublesome element of the proposal, however. OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason.

Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming. Employers, therefore, are rightfully concerned.

The Perils of Publicity

Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:

Construction safety signs
Wikimedia Commons / Peter Bertok

OSHA has recognized that many injuries and illnesses are outside employers’ control. This proposed rule, however, implies otherwise.

1. Employers fear that publicized records will be mischaracterized and public perceptions about the employer unjustly skewed. Without context as to how the injuries actually occurred and what safety measures had been implemented to prevent them, the public could jump to incorrect and harmful conclusions about the employer.

2. Unions will almost certainly use the out-of-context injury and illness information to mislead employees, in order to facilitate organizing campaigns or to advance their interests in contract negotiations.

3. The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving precisely the opposite result OSHA was hoping to achieve.

4. Publication may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.

5. OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault.

Car accident
Wikimedia Commons / Ragesoss

Publication of the data risks divulging proprietary corporate and personal information, the author says.

OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control. This proposal, however, implies that all recorded injuries were the employer's fault, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.

Costly Assumptions

Employers have also presented concerns about the cost and burden of actually submitting the information to OSHA electronically, as proposed.

The literature accompanying the proposal suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense.

Most employers, however (particularly small businesses), still keep injury records in hard copy. Therefore, the time and expense to comply with the new rule will be far greater than OSHA predicts, especially if the employer has 250 or more employees and must therefore submit records four times every year.

Other Concerns

OSHA has also failed to account for many other unforeseen costs and time. Employers may have to implement new systems for recordkeeping or adopt new electronic systems, which will require time spent training and establishing the system, and expenditures on training and maintenance.

For employers who already use electronic recordkeeping, it will likely take more than the 10 minutes OSHA suggests to transfer that data from the employers’ systems to OSHA’s electronic form.

Federal Register

The Federal Register publication of the proposed rule includes information on how to submit comments. The deadline for public comments is March 10.

Finally, OSHA has not considered the costs related to increased OSHA inspections and the negative impact on employers’ reputations.

Many of these concerns have already been submitted to OSHA, but many more are expected through the current extension for stakeholder comments.

Have Your Say

Comments may be submitted electronically, by fax, or by mail; the Federal Register announcement spells out how to do so.

Industry participation in the comment period of this process is essential to ensuring that OSHA hears industry’s concerns and makes the revisions necessary to accommodate a workable rule for all.


Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.



Tagged categories: Epstein Becker Green; Health & Safety; Health and safety; Laws and litigation; OSHA

Comment from Gary Burke, (7/3/2014, 1:52 PM)

More hassles for small or large businesses. Big brother wanting more and more of our private information. Not their business!

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