Recently, the Occupational Safety and Health Administration, (OSHA) announced a proposed rule concerning injury and illness recordkeeping requirements for employers that would make public employee records about illnesses and injuries. 78 Fed. Reg. 67254 (Nov. 8, 2013).
OSHA Assistant Secretary Dr. David Michaels stated that the proposed rule would require employers with 250 or more employees to electronically submit illness and injury records to OSHA on a quarterly basis. Further, employers with 20 or more employees in certain industries with high injury and illness rates would have to electronically submit their injury and illness logs to OSHA electronically every year. OSHA’s intent is to then post the data on its website once personally indentifying information has been removed.
Michaels explained OSHA’s view that the newly proposed rule would allow employers to compare safety records against employers in similar industries. OSHA also says the other proposed rule will allow workers to know about the safety records of potential future employers.
Employers and business groups have expressed concerns about the proposed rule. Under current law, employers have to post summaries of illness and injury reports in a common area where employees can see them. OSHA also currently makes public raw numbers about incidents in workplaces without describing an injury or how it occurred. Business groups are likely to oppose the proposed rule because employers claim that company-specific raw injury data may be misconstrued or misused as the mere recording of an injury does not tell the entire story about how an injury occurred or whether an employer has a good safety program.
The injury and illness data that is to be made public by the proposed rule won’t include information that explains how the injury occurred, such as whether an employee acted in an unsafe manner or failed to follow the employer’s safety rules. The incomplete information OSHA intends to make public may allow competitors, plaintiff’s lawyers, unions, and others to distort this information and wrongly label employers as unsafe or as “bad actors.” Further, given recent problems with federal government’s health care website and database under the Affordable Care Act, it is not much of a stretch to imagine that proprietary or personal information might inadvertently be disclosed to the public.
OSHA’s proposed rule changes will dramatically alter the potential for OSHA citations and fines as well. Under current law, employers must report the death of an employee, or the in-patient hospitalization of three or more employees, within eight hours of learning of the fatality or hospitalizations. But employers are not required to immediately report other illnesses or injuries. Mandatory quarterly reporting of injuries and illnesses will allow OSHA to learn of significant injuries soon enough to get an inspection team to an employer’s facility before the six month statute of limitations for issuing a citation has expired.
Minnesota OSHA (“MN OSHA”) essentially follows OSHA’s recordkeeping requirements. Thus, it seems likely that any proposed recordkeeping changes adopted by OSHA will also be adopted by MN OSHA for Minnesota employers.
Employers and other interested parties have until February 6, 2014 to submit written comments on the proposed rule. Employers may also voice their concerns at a public meeting that OSHA will hold in Washington, D.C. on January 9, 2014. OSHA must take employer comments into consideration before issuing a final rule.
Takeaways: Employers should pay attention to this proposed rule change on recordkeeping requirements. Concerned employers may want to consider submitting written comments on the proposed rule, or may want to contact any trade or industry groups they are a part of to consider possible joint comments on the proposed rule. If the recordkeeping changes are adopted in their current form, employers will need to be even more vigilant to ensure that they have good safety programs in place to reduce the risk of workplace injuries, and to ensure that OSHA recordkeeping is done correctly and timely to minimize the risk of OSHA citations and fines.