On Wednesday, May 25, 2016, the House Subcommittee on Workforce Protections held a hearing on the Occupational Safety and Health Administration's (OSHA) current recordkeeping requirements and the promotion of safe workplaces. The Subcommittee’s Chairman, Tim Walberg (MI) opened the hearing by emphasizing the importance of workplace safety and the primary goal of preventing accidents. He further stated that even though many of the Subcommittee members disagreed on the best approach to promote safe workplaces, every member of the Subcommittee shares the same goal of preventing accidents and protecting the lives of working Americans.

With the ultimate purpose of promoting safe workplaces in mind, Chairman Walberg stated that the Subcommittee had serious concerns over OSHA’s recent recordkeeping rulemaking initiatives. The Subcommittee is specifically concerned about OSHA’s current administrative approach, which entails a more punitive response to workplace safety. Further, the Subcommittee has noted that at times OSHA has enacted regulations, including the most recent rulemaking on record keeping requirements without fully considering or addressing the public’s concerns.

After the opening remarks, the Subcommittee heard testimony from the following witnesses:

  1. David Sarvadi, a Partner at Keller and Heckman LLP, on behalf of the Coalition for Workplace Safety;
  2. Lisa Sprick, the President of Sprick Roofing Co., Inc., on behalf of the National Roofing Contractors Association;
  3. Rosemary Sokas, MD, a professor and chair of the Department of Human Science at the Georgetown University School of Nursing and Health Studies, on behalf of the American Public Health Association; and
  4. Arthur G. Sapper, a Partner at McDermott, Will & Emery, on his own behalf.

Although the testimony from these witnesses touched on different aspects of OSHA's current recordkeeping requirements and enforcement approach, a majority of the witnesses expressed concerns over OSHA’s Final Recordkeeping Rule titled – Improve Tracking of Workplace Injuries and Illnesses. Some of these concerns included a belief that the new electronic reporting requirements would put a substantial burden on employers, result in potential breaches of private and confidential business information, and detract from workplace safety by imposing a “one size fits all approach” that may not be suited for every workplace.

A number of concerns were also raised regarding OSHA’s broad prohibition on recordkeeping procedures that could potentially deter employees from reporting injuries and illness, such as drug and alcohol testing and safety incentive programs. Ms. Sprick specifically testified that OSHA’s new recordkeeping rule, if permitted to go into effect as planned on August 10, 2016, would likely prohibit her safety incentive program, which she believes is a critical component for workplace safety because it helps her employees understand the importance of safety and incentivizes safe working behaviors.

David Sarvadi challenged OSHA’s statutory authority to enact the regulations and the entire basis for the new requirements. He noted that even though OSHA has expressed a belief that the new rules are needed to correct significant underreporting of recordable injuries, when OSHA has examined employers’ records at individual establishments, OSHA has never been able to produce evidence to show that there is pervasive or intentional underreporting of injuries and illnesses in the United States. OSHA relies on academic studies that compare cases from workers compensation records and other sources to cases reported to OSHA. But the workers compensation and other data sources do not represent the same universe of cases. Furthermore, establishment –specific data, which OSHA claims it needs for inspection targeting purposes, is already available through the OSHA data initiative, while industry-specific data are produced by the Bureau of Labor Statistics’ (BLS) using data from its Survey of Occupational Injuries and Illnesses (SOII). Both data sets accurately depict trends in workplace injuries and illnesses, and identify (1) both industries and establishments that call for increased surveillance and inspections; (2) areas of health and safety practice where additional resources should be allocated; and (3) ongoing safety and health regulatory priorities. OSHA therefore already has sufficient accurate and detailed information available to appropriately focus its regulatory and enforcement initiatives. Further data gathering will undoubtedly be more costly, but the resulting information will not improve OSHA’s targeting or setting of priorities for either enforcement or rulemaking. OSHA (and NIOSH) should instead focus their efforts on better understanding the causes of serious cases, and in working with employers to develop better approaches to protecting employees.