OSHA Threatens to Publish Injury / Illness Records Online

I recently completed a series of presentations around the state to member companies of the Ohio Petroleum Marketers and Convenience Store Association (OPMCA) regarding increased OSHA enforcement and OSHA’s “Regulation by Shaming” campaign. Those of you that attended the presentations know about this. For the rest of you, here is yet another way that despite being small, OSHA is powerful and has the ability to severely and negatively impact your ability to do business.

Current OSHA 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 (containing a summary of each establishment’s total number of incidents for the calendar year) in the workplace for a few months each spring. Companies are not required to send these summaries to OSHA. That is about to change.

OSHA has proposed that:

• Companies with 250 or more employees must submit all 300 and 301 logs to OSHA quarterly and 300A summaries annually.
• Companies with 20 or more employees in select industries (which there are several) must submit 300A summaries annually.

This may not seem like much of a burden, since companies are already keeping these logs. The problem is not that this rule is burdensome; rather, the problem is what OSHA intends to do with this data it demands.

One purpose of OSHA’s new rule is to publish all these records online for the whole world to see. And by whole world, I mean competitors, potential employees, lending institutions, and labor unions. Another purpose is for OSHA to target inspections of companies in industries with higher than average injury rates. So even if your OSHA 300A summary is clean, but you work in a high injury industry, you can expect an OSHA investigator to knock on your door.

OSHA’s leader, Dr. David Michaels coined his campaign as “Regulation by Shaming” and hopes that by making companies public spectacles they will comply with OSHA laws. There is a major flaw in logic in this prong of Dr. Michaels’ campaign, though.

The proposed regulation assumes that every incident recorded on an OSHA 300 log is a violation of the OSH Act. The vast majority of recorded injuries are not violations of the OSH Act. For example, even if companies strictly comply with each and every rule and regulation, there remains a chance that an employee may hit his thumb with a hammer, cut a finger with scissors, or twist an ankle when walking down the hallway. And those are recordable workplace injuries, but not violations of any OSHA law.

This proposed rule makes me mad.

In addition to Dr. Michaels’ flawed logic, OSHA’s own press release announcing this rule references estimated statistics to support its need. Yep, OSHA made up statistics to justify why companies’ private OSHA records should be made public. The release says that OSHA “estimates that three million workers were injured on the job in 2012.” It continues:

“Three million injuries are three million too many,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “With the changes being proposed in this rule, employers, employees, the government, and researchers will have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses, and fatalities.”

Somehow an “estimate” makes its way into a press release as factual. My anger doesn’t stop there. The press release continues:

OSHA plans to eventually post the data online, as encouraged by President Obama’s Open Government Initiative. Timely, establishment-specific injury and illness data will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.

(emphasis added). So Dr. Michaels skews President Obama’s “Open Government Initiative” to mean that the federal government should change the law to collect a bunch of private information and then make that information public?

Aren’t you mad now, too?

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.