OSHA Extends Comment Period for Controversial Injury and Illness Recordkeeping Rule

Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide.  In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”).  NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses.  March 8, 2014 is now the deadline by which all interested parties must submit comments

on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014.  For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).

OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances.  That is hardly the most troublesome element of the proposed new rule, 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 about the rule.

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

1. Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed.  Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, 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 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 the precise opposite result OSHA was hoping to achieve.
4. Publication of injury and illness records 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.  OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control.  This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.

Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule.  The literature included with the proposed rule 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 predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year.

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 those employers who already use electronic recordkeeping, it will likely take more than the ten minutes suggested by OSHA to transfer that data from the employers’ systems to OSHA’s electronic form.  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 30-day extension for stakeholder comments.  Comments can be submitted electronically, by fax, or by mail.  OSHA has also published its announcement in the Federal Register and included specific details for how to submit comments.  As we stated in our prior post, industry participation in the comment portion of this process is essential to ensure OSHA hears Industry’s concerns and makes the revisions necessary to accommodate a workable rule for all impacted parties.  Contact us for help participating in this rulemaking process.