OSHA's Injury Tracking Rule: A Reasonable and Urgent Step Forward for Worker Safety and Health

Tuesday, July 5, 2016

By Eric Frumin, Safety and Health Director, Change to Win

The Department of Labor has finally entered the age of “Big Data.” The Labor Department is making a significant step forward into the 21st Century by requiring employers in the highest-risk sectors to electronically provide OSHA information that employers have been recording since shortly after the passage of the Occupational Safety and Health Act in 1971.

Unfortunately, until now—in contrast to its sister agency the Mine Safety and Health Administration, as well as other federal labor and public health agencies—OSHA has failed to make most of the covered employers send these data directly to the Labor Department.

This is exactly the data OSHA needs to effectively target its limited number of inspections as well as its compliance assistance programs. It is unfathomable that OSHA did not have easy access to it before.

OSHA has hard evidence for why this step is needed. But that evidence seems to matter little to the corporate trade associations and their GOP allies who oppose virtually every new agency mandate, no matter how well-founded or ultimately helpful to the employers themselves. In this case, they claim that public disclosure will somehow irreparably harm employers.

However, since 1997, OSHA has already required a small subset of affected employers in only the highest-risk sectors to provide their annual statistical summaries of worker injuries and illnesses to OSHA on request, in part for the purpose of assisting the agency in targeting enforcement inspections. This is called the OSHA Data Initiative (“ODI”). In 2005, OSHA finally released these summary data to the public on OSHA's website, and only as a result of an order from a Federal District Court in response to a Freedom of Information Act lawsuit by The New York Times.

Fortunately, OSHA has proceeded to use the ODI data for targeting its inspections to specific establishments with self-reported high rates within these already high-risk sectors, and often with remarkable results. While 23 states have exercised the option to run their own enforcement programs in the private sector, very few of them have made use of these important targeting data. Some have relied instead on equivalent state workers' compensation data, but most—including California, the biggest state program—have not, nor has Federal OSHA forced them to adopt this technique.

After sending letters to the worksites with the highest rates, OSHA then inspected roughly 25 percent of these pre-notified employers under its Site-Specific Targeting (“SST”) emphasis program, and found violations in roughly 70 percent of all inspected sites. With these ODI data in hand, OSHA has been able to assure that its inspectors are going to the workplaces with serious hazards and likely violations. The DOL Inspector General reported that for FY 2011, SST inspections “resulted in more [violations] per inspection (4.7 average) than other targeting programs (2.8 average).”

Such inspections are critically important to OSHA's overall prevention mission. As the RAND Corp. found in its often-ignored but revealing 1998-2005 study of OSHA inspections in relatively small manufacturing plants in Pennsylvania, inspections which both found any violations and imposed penalties resulted in a cumulative 20 percent drop in workers' compensation claims over the following two years (A. Haviland et al, “What kinds of injuries do OSHA inspections prevent?” Journal of Safety Research, August 2010).

Equally important, RAND found that even for violations of the Personal Protective Equipment standard, there was a 17.5 percent reduction in claims for overexertion injuries—indicating that the violations prompted employers to do a wider evaluation of their overall safety and health problems.

The RAND Corp. findings also were confirmed by a joint Harvard University-California Berkeley study for a comparable period, which also reported that inspections with penalties by California state inspectors were associated with a 9.4 percent annual drop in rates of workers' compensation claims (D Levine et al, “Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss,” Science, 309: 907, 2012).

OSHA has been severely underfunded for much of its existence. The Obama administration immediately sought to remedy that gap, and saw both federal and state plan enforcement funding in particular jump by 13 percent in 2010. However, the Republican congressional leadership has consistently refused to provide any further funding, and frequently sought to cut resources for enforcement in DOL appropriations bills. But the existence of the SST program, based on these fundamental targeting data, has helped DOL to find a key point of leverage against employers who would ignore their basic job safety and health obligations.

So it is a welcome relief that OSHA will now be able to formalize this vital targeting tool, and apply it as a critical additional criterion in designing other targeted emphasis programs in industries where individual employers report persistently high injury rates, like nursing homes, heavy manufacturing, poultry processing, warehousing, waste-handling and other dangerous sectors.

But beyond the mere summary rate information about individual worksites, an additional wealth of valuable information has simply lain fallow in employers' worksite records, awaiting the review by an actual OSHA inspector as part of the rare on-site inspection. The additional data, including details on individual worker injury and illness cases, will now be available to OSHA inspectors, workers, employers and others as a result of OSHA's recent rulemaking. For 34,000 large, sophisticated worksites with more than 250 employees each, OSHA will now require that they annually submit to OSHA both the lists of significant work-related injuries and illnesses, as well as the employer's required “Incident Report” describing the circumstances and underlying causes. None of the submitted information will include personally identifiable data.

Equally important, OSHA will make these reports public, so that workers, counterpart employers, public health researchers and the media will be able to understand in much greater detail the nature of the hazards and injuries that workers face on a daily basis.

For decades, workers at these sites have already had a legal right to all of these lists of injuries, including workers' names, as well as their own Incident Reports. But finally, all workers will now have the easy ability to obtain this important information without having to request it from their bosses—and risk the consequences of being labeled “troublemaker,” or worse. (Since the vast majority of America's private-sector workers have no job-security protection, employers can easily discipline, terminate or otherwise discourage workers from “asking too many questions.”)

It is certainly reasonable to expect that this new scrutiny will promote more accurate recordkeeping by large employers concerned with assuring that accurate information is publicly available.

However, we also expect that this heightened attention by the employers themselves will promote better use of existing records for prevention purposes, by both large and small employers, because of the additional attention that these records will now receive within the enterprise.

Workers' enhanced access to the details found in the Logs and Incident Reports at larger worksites will also promote prevention. As workers learn about the history of incidents that affect them, they will be better prepared to request employer action to fix such hazards going forward. The availability of the Incident Reports will also reveal past problems with the investigation of those incidents (such as “blame the victim” conclusions rather than failures of the employer's training and supervision regimens). Such omissions or misguided excuses interfere in the identification of root causes of those problems in the first place. Without root cause identification, the hazards will continue and resulting injuries and illnesses will recur.

In response to this proposal, employers and their GOP allies have raised several false alarms, including a supposed concerns about confidentiality of workers' personal information. Such concerns are misplaced: OSHA will not even collect workers names or any other information most likely to allow those outside the workplace to identify individual workers. Assuming employers comply with the reporting framework, OSHA will neither hold such data, nor be subject to any unauthorized release of it.

Corporate trade associations also have complained about the “threat” of misuse or misinterpretation of their own injury reports, once OSHA makes them public, supposedly rendering the Fortune 500 or even the smaller businesses the subject of unfair comparisons which will irreparably harm the companies' reputations. This barely passes the laugh test. First, much of this data has already been on OSHA's website for more than a decade. During the public comment period, industry representatives were repeatedly pressed to identify examples of such unfair comparisons and wounded reputations. They could not. The truth speaks for itself.

And since when does Google censor corporate press releases or websites? In the age of Citizens United, corporate America certainly need not feel any threats to its mythical rights to free speech.

But if the truth hurts, so do infections—a good warning sign of problems needing attention. Injury/illness rates may be so-called “lagging indicators,” and in individual companies or industries other “leading indicators” may be preferable for guiding prevention efforts. But corporate managers are certainly misguided—and putting their workers in continued peril—if they ignore either historical trends or recent incidents. OSHA will now give both them and their at-risk workers the ability to see those trends and incidents in similar or identical situations well beyond the walls and horizons of their own worksites and companies.

In sum, OSHA's willingness to obtain this information and share it will provide an important service to corporate managers, their workers and others with tangible interest in this issue: investors, prospective workers, and community leaders. If we were looking for a cheaper and more efficient system to engage that interest, it would be hard to do so.

The other important innovation is OSHA's new provision requiring employers to assure that employers' reporting procedures are reasonable, and that employers train workers about both the procedure and their right to report injuries without any discrimination or retaliation. And for the first time, OSHA incorporates that prohibition on retaliation directly into its enforceable regulations.

OSHA has good reason to do so. There is ample evidence that some employers systematically discourage workers from reporting work-related injuries and illnesses, on a scale large enough to affect not only the validity of the statistics at individual worksites but, according to the Bureau of Labor Statistics, nationally as well. Indeed, the Government Accountability Office's recent analysis of employer practices found a shockingly common pressure on medical providers to modify their treatment decisions such that the cases will no longer meet OSHA's recordability criteria.

“Disincentives for reporting and recording injuries and illnesses can result in pressure on occupational health practitioners from employers or workers to provide insufficient medical treatment that avoids the need to record the injury or illness. From its survey of U.S. health practitioners, GAO found that over a third of them had been subjected to such pressure” (US Government Accountability Office, “Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data,” GAO 10-10, October 2009).

For several years, OSHA also has been very concerned about employers' deliberate policies which discouraged worker reporting of recordable cases, and taken action within its highly limited existing authority under Section 11(c) to stop them. However, OSHA was not the only party to the rulemaking that emphasized that employers affirmatively seek to reduce their reported injuries—without necessarily preventing them. As the National Federation of Independent Business, one of the largest and most sophisticated corporate lobbyists, stated it:

“[T]he proposed rule will make small businesses less likely to report injuries. NFIB expects that … many small businesses will report fewer injuries because the negative consequences of logging too many injuries will be so great.”

The stakes are simply too high for OSHA to allow employers to continue with these abusive policies, and its decision to make use of its full statutory and enforcement authority is long overdue.

Eric Frumin is the Safety and Health Director for Change to Win, the partnership of four national labor unions founded in 2005 representing 4 million workers. He is a leading national trade union spokesperson on issues of job safety, health and disability, including OSHA standard setting and enforcement, and occupational disease and injury surveillance. He also has directed the safety and health programs for Change to Win-affiliated unions since 1974, and testifies frequently before congressional committees on workplace safety and health and related issues.

This BNA Insights does not represent the views of Bloomberg BNA, which welcomes other points of view.

Reproduced with permission from Copyright 2016 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com

Originally published in BBNA’s OSH Reporter on June 30, 2016.

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