Regulation by Shaming: OSHA Proposes to Publish Employers’ Injury and Illness Records Online

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

In a proposed rule published in the Federal Register on November 8, 2013, the Occupational Safety and Health Administration (OSHA) presented a drastic change to employers’ recordkeeping and reporting obligations. Current regulations only require employers to notify OSHA of fatalities or incidents involving the hospitalization of three or more employees. Employers must also post their OSHA 300A summaries (which contain a summary of each establishment’s total number of incidents for the calendar year)  in the workplace. But they are not required to send these summaries to OSHA or the Bureau of Labor Statistics (BLS), unless requested.

OSHA’s proposed regulation adds new reporting obligations:

  • Employers with 250 or more employees must electronically submit all 300 and 301 logs to OSHA on a quarterly basis and submit annual 300A summaries by March 2 each year.
  • Employers with 20 or more employees in select industries (including construction, utilities, nursing care, and dry cleaning, among many others) must electronically submit annual 300A summaries by March 2 each year.
  • Employers must electronically submit any requested Part 1904 records upon demand by OSHA, within an unspecified time interval for response.

OSHA reveals few details about the website on which employers would upload their logs, other than it will be “secure” and allow direct data entry or batch file uploads. The agency also proposes several alternatives to the proposed rule, all of which mainly focus on: (1) increasing or decreasing the employer size required to file electronic submissions; (2) increasing or decreasing the frequency of electronic submissions; and (3) submitting records on an “enterprise” basis—a term which OSHA admittedly is unsure how to define. The agency invites the public to comment on these alternatives.

Why is OSHA doing this now? Its stated purpose is to “improve workplace safety and health” through the timely collection of data. But, OSHA’s rationale is dubious: employers are already required to timely compile this data, and the agency already has the ability to access these records. The clerical task of uploading records to the agency does nothing to improve workplace safety.

The real purpose of OSHA’s proposed rule is to publish all of these records online, under the idea that doing so will “shame” employers into compliance. This is OSHA Assistant Secretary Dr. David Michaels’ latest push to advance his controversial “regulation by shaming” initiative. Under this initiative, the agency circulates antagonistic press releases immediately after issuing unproven (and often contested) citations, accusing employers of being bad actors and trying cases in the press. Dr. Michaels openly embraces the idea that, in the words of Roman philosopher Seneca the Younger, shame may restrain what the law does not prohibit.

This proposed regulation wrongly assumes, however, that every incident recorded on an OSHA 300 log is somehow a violation of the OSH Act. The vast majority of recorded injuries are not; for instance, even if you comply with all OSHA regulations, the chance that you will hit your thumb with a hammer always exists.

OSHA invites the public to comment on the proposed rule by February 6, 2014. OSHA did not give any timetable for expected publication of a final rule.

John F. Martin is a shareholder in the Washington, D.C. office of Ogletree Deakins.

- See more at: http://blog.ogletreedeakins.com/regulation-by-shaming-osha-proposes-to-publish-employers-injury-and-illness-records-online/#sthash.kUt4eWXk.dpuf

In a proposed rule published in the Federal Register on November 8, 2013, the Occupational Safety and Health Administration (OSHA) presented a drastic change to employers’ recordkeeping and reporting obligations. Current regulations only require employers to notify OSHA of fatalities or incidents involving the hospitalization of three or more employees. Employers must also post their OSHA 300A summaries (which contain a summary of each establishment’s total number of incidents for the calendar year)  in the workplace. But they are not required to send these summaries to OSHA or the Bureau of Labor Statistics (BLS), unless requested.

OSHA’s proposed regulation adds new reporting obligations:

  • Employers with 250 or more employees must electronically submit all 300 and 301 logs to OSHA on a quarterly basis and submit annual 300A summaries by March 2 each year.
  • Employers with 20 or more employees in select industries (including construction, utilities, nursing care, and dry cleaning, among many others) must electronically submit annual 300A summaries by March 2 each year.
  • Employers must electronically submit any requested Part 1904 records upon demand by OSHA, within an unspecified time interval for response.

OSHA reveals few details about the website on which employers would upload their logs, other than it will be “secure” and allow direct data entry or batch file uploads. The agency also proposes several alternatives to the proposed rule, all of which mainly focus on: (1) increasing or decreasing the employer size required to file electronic submissions; (2) increasing or decreasing the frequency of electronic submissions; and (3) submitting records on an “enterprise” basis—a term which OSHA admittedly is unsure how to define. The agency invites the public to comment on these alternatives.

Why is OSHA doing this now? Its stated purpose is to “improve workplace safety and health” through the timely collection of data. But, OSHA’s rationale is dubious: employers are already required to timely compile this data, and the agency already has the ability to access these records. The clerical task of uploading records to the agency does nothing to improve workplace safety.

The real purpose of OSHA’s proposed rule is to publish all of these records online, under the idea that doing so will “shame” employers into compliance. This is OSHA Assistant Secretary Dr. David Michaels’ latest push to advance his controversial “regulation by shaming” initiative. Under this initiative, the agency circulates antagonistic press releases immediately after issuing unproven (and often contested) citations, accusing employers of being bad actors and trying cases in the press. Dr. Michaels openly embraces the idea that, in the words of Roman philosopher Seneca the Younger, shame may restrain what the law does not prohibit.

This proposed regulation wrongly assumes, however, that every incident recorded on an OSHA 300 log is somehow a violation of the OSH Act. The vast majority of recorded injuries are not; for instance, even if you comply with all OSHA regulations, the chance that you will hit your thumb with a hammer always exists.

OSHA invites the public to comment on the proposed rule by February 6, 2014. OSHA did not give any timetable for expected publication of a final rule.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!