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OSHA Proposes Public Disclosure of Workplace Injuries

As a means for improving safety and reducing workplace injuries, the Occupational Safety and Health Administration (OSHA) recently proposed a change that would require manufacturing firms, among others, to make public information about injuries and illnesses.

The controversial proposal has elicited flak from several quarters, including the influential National Association of Manufacturers (NAM) the largest manufacturing association in the country – as well as state-based trade groups (see right-hand box).

Background

Currently, companies are required to post only an annual summary of workplace injuries and illnesses in a common area, giving employees a chance to view data. Under the proposed rule, employers would have to submit information about injuries and illnesses electronically. As a result, the public, not just the employees, would be able to see the reports.

The frequency of reporting would depend on the size and nature of the employer:

  • For the estimated 38,000 companies nationwide that have more than 250 employees, the information would be submitted quarterly.
  • For the estimated 440,000 companies with 20 or more employees that operate in industries with a high rate of injury or illness, such as manufacturing, the data would have to be submitted at least once a year.

OSHA expects that the public disclosure requirements will reduce workplace accidents and illnesses by emphasizing the need to comply with existing safety rules and improve safety procedures. The agency also says it believes that the proposed rule would result in more efficient allocation of its resources.

Currently, it has only 2,400 inspectors for the entire country. If the proposals are enacted, the agency says it could target employers with poor safety records and scale back inspections at companies that have spotless or minimal injurioes and illnesses.

Reaction to the Proposal

Following its usual procedure, OSHA requested comments on the proposal. It may have received more than it bargained for.

The general reaction by the business community has been negative. The proposal has drawn criticism particularly from some of the industry leaders that have been targeted as high-risk employers.

NAM Vice President of Human Resources Policy Joe Trauger issued the following statement:

“OSHA’s proposed rule sidesteps collaborative efforts of employers and employees, and it will not accomplish our shared goal of a safer workplace. Presenting this information without context will likely confuse and undermine ongoing efforts by diverting attention and resources from activities that would have an impact. . . . the raw data may result in unfair conclusions or judgments about a company or particular industry based on information that is not indicative of the actual safety record.”

NAM’s Seven Objections

NAM has provided several reasons explaining why it is asking OSHA to withdraw the proposal. Nam maintains:

1. Current recordkeeping requirements are adequate. Based on a decline in injury and illness rates since 2001, it is evident that the current system is achieving its objectives.

2. OSHA does not have authority to make this change. Even if the current system was somehow inadequate or needed revision, the agency lacks the legal authority under the Occupational Safety and Health Act (OSH Act).

3. The proposed regulation creates unnecessary duplication of reporting in violation of the OSH Act. The law specifies that submission of information from employers could become burdensome. It was Congress’ intent to limit or reduce that burden.

4. Confidential commercial information is protected from disclosure. Under the Freedom of Information Act (FOIA), certain documents are exempt from public disclosure.

5. Personally identifiable information must be protected. The proposed regulation tips the balance OSHA seeks to achieve between providing employees with full accesses to injury and illness records and the privacy interests of employees.

6. OSHA has not made federal agency records publicly available. The NAM points out the inconsistencies in the treatment of federal agencies.

7. Various policy considerations dictate that the proposal be withdrawn. Among other issues, there is the potential for misuse of raw data by third parties and an unfair portrayal of an employer’s safety and health program.

In summary: NAM and other critics conclude that OSHA has failed to consider all the implications of implementing this rule. The NAM says it does not believe that the proposed regulation will increase workplace safety and instead argues that it could result in negative consequences.

No California Dreaming on Proposal

Several state manufacturing associations have voiced their opposition to the proposed OSHA rule. One of the most vocal, the California Manufacturing & Technology Association (CMTA), makes the following points:

  • OSHA lacks the statutory authority to publicly disseminate the information it plans to publish.
  • Disclosure will result in confidential, sensitive and proprietary business information being made public.
  • Dissemination will provide material for those who wish to mischaracterize employers.
  • The electronic reporting requirement imposes another burden on employers.
  • The agency’s cost and benefit estimates are entirely speculative and without any credibility.
  • OSHA should have conducted a small business review panel to better understand the impact this rule will have on small businesses.

The CMTA has joined with the Coalition for Workplace Safety, which includes the NAM and more than 90 other signatories, to urge OSHA to withdraw its proposal.

© 2014