Trying to keep your illness and injury reports low profile? According to new rules proposed by the Occupational Safety and Health Administration (“OSHA”), not under their watch! At an estimated cost of $10.5 million per year to employers, OSHA’s three new proposed rules will impact approximately 480,000 employers by making their injury and illness records publicly available for the first time. See Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67273, 67275 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pt. 1904).
OSHA’s first proposed rule would require establishments that are required to keep injury and illness records, and that had 250 or more employees in the previous year, to submit information electronically from all of these required records to OSHA on a quarterly basis. Id. at 67272. The second proposed rule would require establishments that are required to keep injury and illness records, had 20 or more employees in the previous year, and are in certain designated industries with high illness and injury rates (such as agriculture, manufacturing, and construction), to submit electronically summaries of work-related injuries and illnesses to OSHA on an annual basis. Id. The third proposed rule would require all employers to submit information electronically from their injury and illness records to OSHA upon agency request. Id. After collection, OSHA’s stated plan is to make all of this information publicly accessible via its website. Id. at 67259.
These proposed rules will provide OSHA and the public with information that was either previously unavailable or not readily accessible, which could result in greater public awareness of the safety of employers’ workplaces—potentially affecting both prospective employee and customer choices—and increased enforcement by OSHA. See id. at 67257-67259. Although Dr. David Michaels (Assistant Secretary of Labor for Occupational Safety and Health) has publicly stated that “[t]his initiative will not result in more OSHA enforcement,” the proposed rulemaking itself notes “access to this information will allow OSHA to use its resources more effectively by enabling the Agency to identify the workplaces where workers are at greatest risk. . . and to target its compliance assistance and enforcement efforts accordingly.” 78 Fed. Reg. at 67256.
Whether one views the proposed rules as positive in that they permit greater review of workplace safety, or negative in that they subject employers to increased costs and scrutiny over circumstances that can be difficult for an employer to control, debate regarding the proposed OSHA rules is likely to be robust. Comments on the proposed rules, which can impact whether, and in what manner, the rules become final, can be submitted electronically at http://www.regulations.gov by typing RIN 1218-AC49 in the “Search” field. Comments must be submitted by February 6, 2014.