#form 300

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OSHA Wants to Hide Information on Worker Injuries

New Post has been published on http://entirelysafe.com/osha-wants-to-hide-information-on-worker-injuries/

OSHA Wants to Hide Information on Worker Injuries

The Agency Plans to Roll Back an Important Obama-Era Recordkeeping Rule

OSHA proposed last week to roll back parts of the “Electronic Recordkeeping” regulation that the Obama administration issued in 2016. The rule would have required certain employers to electronically send worker injury and illness information into OSHA. OSHA then intended to publicize the (non-confidential) information on its website. In a somewhat amusing, but Orwellian press release, OSHA portrays the rollback as an effort to “better protect” workers’ confidential information.

This is about the administration listening to employers who don’t want workers and the public to know about dangerous conditions.

I finally had a chance to read the full OSHA proposal. Spoiler Alert: I’ve read a lot of OSHA regulatory proposals over my career and this one barely passes the laugh test, much less presents a serious argument for why this regulation should be weakened. Instead of an effort to better protect workers’ confidential information, this is a poorly justified attempt to protect employers from having to reveal potentially embarrassing information.

In other words, according to former OSHA official Debbie Berkowitz, “This is about the administration listening to employers who don’t want workers and the public to know about dangerous conditions.”

But even this partial rollback isn’t good enough for the Chamber of Commerce. Marc Freedman, the Chamber’s vice president of workplace policy, said publishing any employer data on injuries and illnesses could also be used to unfairly malign businesses. “Not all injuries that have to be recorded reflect on an employer’s safety program. We don’t think they’ve fully taken care of the problem.”

Background

In order to fulfill the purpose of the Act, OSHA is authorized to require employers to record injury and illness information, as well as collect information on safety and health from employers, including injury and illness information. Consequently, OSHA has long required certain employers to keep injury and illness logs; specifically, OSHA Forms 300, 300A, and 301. OSHA Form 300 is a log of all injuries and illnesses, including names of worker injured or sickened. The 300A Form is a summary of that form that contains no names or confidential information. Employers are required to post that information in the workplace between Feb. 1 and April 30 of every year. The 301 Form is a detailed description of workplace injuries that includes information about what happened and what the employee was doing just before the incident occurred.

On May 12, 2016, OSHA amended its recordkeeping regulation to require employers to annually submit to OSHA, by electronic means, injury and illness information that employers were already required to keep. Establishments with 250 or more employees in industries that are routinely required to keep records are required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA’s designee once a year. Small businesses with 20 to 249 employees in certain designated industries are only required to submit information on the summary form 300A. Employers were already required to collect this information. The only change was that they were now required to send it into OSHA through a web-based electronic system that OSHA would develop.

Until the new regulation was issued, OSHA did not — with one exception — require any of that information to be sent in to OSHA. The main purpose of requiring employers to collect the information was to help them improve their health and safety programs, and OSHA Inspectors consulted the information when conducting inspections. The one exception was OSHA’s collection of injury and illness information from around 80,000 employers every year, a program that lasted from 2006 to 2013 and was used to better target OSHA inspections in the most dangerous workplaces.

The 2016 rule had two phases. The first phase was submission of the Form 300A summary data which, after several delays, took effect last year. The second part, sending in information from the 300 Form and the more detailed 301 data, was supposed to take effect this year. Submission of the 300 Log and the detailed Form 301 data are the requirements that OSHA is proposing to cancel in last week’s proposal.

What Were The Benefits?

The main purpose of this regulation was to help OSHA and the workplace safety and health community better determine why workers are getting hurt on the job and how to protect them more effectively. OSHA stated in the preamble of the 2016 regulation that the “data will improve OSHA’s ability to identify, target, and remove safety and health hazards, thereby preventing workplace injuries, illnesses, and deaths.” Beyond enabling OSHA to better target the most dangerous workplaces, OSHA stated that the making the data public “will allow the public, including employees and potential employees, researchers, employers, unions, and workplace safety and health consultants, to use and benefit from the data. It will support the development of innovative ideas and allow everybody with a stake in workplace safety and health to participate in improving occupational safety and health.”

While the Bureau of Labor Statistics makes aggregate data available to the public, OSHA’s data collection would make much more detailed and site-specific data available to researchers. And the establishment-specific data would “enable OSHA to conduct rigorous evaluations of different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient. ”

Why Does Trump OSHA Want to Stop Collection of the Detailed Information?

But what seemed like a great idea two years ago, is not longer a great idea, according to OSHA, which is now amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. (Emphasis added.)

None of these statements are true nor are they effectively supported in the proposal.

1. Protecting Sensitive Worker Information: OSHA assured the public when it issued the original 2016 regulation that all confidential information would be protected. This would include the information on the left side of the 301 Form, specifically workers’ names, birthdates, names of their doctors, etc. But OSHA now argues that it’s possible, despite unanimous and universal court decisions ensuring the confidentiality of that information, that some court in the country could someday allow that confidential information to be released to the public.

OSHA warns, “That risk remains so long as there is a non-trivial chance that any court in any of the nation’s 94 federal judicial districts might issue a final disclosure order after the exhaustion of all available appeals.” Arguing that the risk is “not speculative,” the proposal cites an organization that in 2017 “invoked FOIA to request that the Department produce electronically-submitted information from Forms 300, 300A, and 301.”

Note the emphasis that I added: “electronically-submitted information.” In order to ensure the security of confidential information, OSHA ensured that employers will not even submit information to OSHA that is confidential, such as names. If the information is not “electronically submitted” to OSHA, then there is nothing there to FOIA, even if some court, someday, goes rogue.

The other example OSHA uses to show that the risk is “not speculative” is a lawsuit by former OSHA employee Adam Finkel requesting information on OSHA employees who may have been exposed to toxic beryllium dust in the course of their jobs that OSHA lost in 2006. But Finkel never sought nor did he receive identifiable information, and the court only ordered the de-identified results to be handed over. OSHA’s use of this case in its argument is somewhat garbled, but it concludes that despite the fact that the court never ordered identifiable information to be released, “it is reasonably foreseeable” that a future court could.

So, in conclusion, the “risk of disclosure” that OSHA is allegedly protecting workers from, is entirely speculative and not based only any real evidence outside the fevered imaginations of OSHA regulatory writers, undoubtedly egged on by the Secretary, the White House and corporate opposition to the whole concept of transparency.

And the workers that OSHA is supposedly protecting? As AFL-CIO Health and Safety Director Peg Seminario said in a statement to Bloomberg BNA:

“OSHA’s claim that it is proposing to revoke employer requirements to submit detailed injury data in order to protect employee privacy is truly cynical. Workers and worker representatives strongly support the collection of this information to help identify workplaces with serious injuries in order to protect workers health. Only industry groups oppose these common-sense requirements. The real reason for this rollback is to protect employers who don’t want workers or the public to know about dangerous conditions and hazards at their workplaces. “

ACTION BOX/What You Can Do About It

Let OSHA know that it should be protecting workers, not employers.

Electronically: You may submit comments electronically at https://www.regulations.gov/, which is the federal e-rulemaking portal. Follow the instructions on the website for making electronic submissions;

Fax: If your submission, including attachments, does not exceed 10 pages, you may fax it to the OSHA docket office at [phone];

Regular mail, express mail, hand delivery, or messenger/courier service (hard copy): You may submit your materials to the OSHA Docket Office, Docket No. OSHA-2013-0023, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: [phone] (TTY [phone]). OSHA’s Docket Office accepts deliveries (hand deliveries, express mail, and messenger/courier service) from 10 a.m. to 3 p.m. ET, weekdays.

Important. Be sure to include the docket number OSHA-2013-0023 or regulatory information number (RIN) 1218-AD17.

Comments must be submitted by Sept. 28.

2. Uncertain Benefits of the Original Regulation: OSHA has suddenly decided that the benefits of collecting and publicizing this data are now “uncertain.” Why? Because “OSHA has no prior experience with using the case-specific Form 300 and 301 data to identify and target establishments. OSHA is unsure as to how much benefit such data would have for targeting, or how much effort would be required to realize those benefits.” And the summary From 300 is adequate to enable OSHA to target the most dangerous workplaces.

In other words, because we’ve never done it before, there’s no way to figure out if it would be beneficial. So much for innovation.

But OSHA does have a point that the summary Form 300A should suffice for inspection targeting. And it’s also possible that OSHA at this point doesn’t have the staff or resources to fully analyze all the data they will be collecting. But the proposal completely ignores the main benefit of collecting and publicizing the data: the benefit the data will provide to outside researchers and the public.

3. The Costs to OSHA: Not only are the benefits uncertain, but because of the sheer volume of Form 301 reports, “to gain (speculative, uncertain) enforcement value from the case-specific data, OSHA would need to divert resources from other priorities, such as the utilization of Form 300A data, which OSHA’s long experience has shown to be useful.”

Also, OSHA would better spend its time and resources addressing the high level of non-compliance with requirements that employers send in severe injury reports and the summary 300 Forms. I’m not sure what resource-intensive efforts OSHA is making to ensure better compliance with those requirements (not much from what we hear), but enforcing this additional requirement would fall into the same basket.

OSHA is also estimating that getting rid of this requirement would save OSHA around $400,000 because it wouldn’t have to finish developing the data system to collect the data. Not much money saved there, and from my memory, the system was already finished, or very close to being finished at the end of the Obama administration, 18 months ago.

4. Costs to Employers: OSHA also cites the burden to employers of sending the data into OSHA. First, remember that the data being sent into OSHA has already been collected, so the only additional costs is actually sending it to OSHA. OSHA estimates that by relieving the nation of this burden, a total of $8.7 million will be saved. That’s not $8.7 million per employer — that’s $8.7 million for the entire country. The cost of workplace injury, illness and death in this country is over $250 billion per year. It wouldn’t take a whole lot of prevented injuries or deaths for this regulation to pay for itself.

5. “Benefits” of Repealing the Requirement to Submit Forms 300 and 301 Information: OSHA has kindly attempted to describe the benefits of rolling this regulation back — or “better protecting” workers, as they say.

Sort of.

First, remember they argue that they are protecting workers from the risk that their confidential information will be disclosed. And, according to the OSHA proposal, “The value of worker privacy is impossible to quantify, but no less significant because of that fact.”

Indeed.

Second, OSHA admits that the Form 300 and 301 information “could add enforcement benefits,” but on the other hand, those benefits are “uncertain and difficult to quantify” — mainly because OSHA has never actually worked with this data before.

Therefore, the agency concludes that “the (substantial) benefits to worker privacy outweigh the (uncertain) foregone benefits to enforcement.”

In other words, according to OSHA, the benefits of eliminating the threat to worker privacy may be unquantifiable, but this unquantifiable (and probably non-existent) risk is nevertheless somehow “substantial” enough to outweigh the “uncertain” and “difficult to quantify” value that the information could provide to researchers, the public and OSHA.

So “unquantifiable” somehow trumps “uncertain” in OSHA world.

Back in the day, logic like this would have been laughed out of the room and sent back to the drawing board.

The Good News

The only good news coming out of this is that OSHA had decided not to monkey with language in the regulation prohibiting employers from retaliating against workers for reporting injuries and illnesses. The Chamber of Commerce and other industry groups were upset that this provision could keep employers from imposing retaliatory drug tests or incentive programs that discourage workers from reporting injuries or illnesses.

Source: By Jordan Barab, Confined Space

[visitaag]

OSHA Announces Delay to Electronic Reporting Rule

Employers will be relieved, at least temporarily, to learn that the requirement to file injury information through an electronic recordkeeping system that was scheduled to take effect this July 1 has been delayed. The Occupational Safety and Health Administration (OSHA), which had issued a rule requiring the posting of such information for most employers in May 2016, announced yesterday that the filing deadline will be postponed for an undetermined period of time.  

Delay Expected But Details Not Yet Forthcoming

Many had expected the Trump administration to delay implementation, or Congress to deny funding to the program, so this news does not necessarily come as a surprise. What is unknown at this point is the exact rationale for the delay and when a new deadline will be set (if at all). No further information has been forthcoming about the rule or the delay, however, presumably because we only just recently gained a Secretary of Labor and we still do not have a new Director of OSHA or deputies in place.

  Although the filing deadline is just six weeks away, it was telling that the agency had not yet even provided the online portal for employers to begin collecting and submitting the information required (the previous calendar year’s recordable injury and illness cases and rates for each workplace).

What The Rule Would Have Done

It is important to remember that electronic recordkeeping rule would not have created new obligations in terms of reporting. Those employers covered by the new rule would have been asked to simply use data from their OSHA Forms 300, 300A, and 301 when using the electronic reporting method. However, OSHA was prepared to electronically post injury and illness data on its website from all workplaces with 20 or more employees and for those in certain high-risk industries, making the information publicly available for consumption by unions, plaintiffs’ attorneys, and others. Submission was to be phased in based on employer establishment size and industry.

Although the Obama administration interpreted new anti-retaliation provisions in a manner that has significant effects on automatic post-accident drug testing, safety incentive plans, and injury reporting procedures, there is no word yet on whether these agency pronouncements will also change.

What’s Next

We will be in a better position to understand the future of the rule once Labor Secretary Alexander Acosta settles into his new role, and once an OSHA Director is in place. One would expect that the agency will announce its intentions with respect to the new rule in the coming months. Several employer groups had been requesting that the Trump administration reopen the rules making process to consider changes to the rules, and such an option could possibly be on the table.

It would not be surprising to see unions or other worker advocacy groups bring legal challenges to force OSHA to meet the July 2017 implementation date. A collection of groups had already been waging a media campaign supporting the new rule. Just today, in fact, the former Assistant Secretary of Labor for OSHA under President Obama complained that the decision to delay the rule was made for political purposes and was not technical in nature.

Also, although two federal court lawsuits are pending challenging the new rule (including one filed by the U.S. Chamber of Commerce), several unions and worker advocacy groups have already petitioned the court to step in and defend the rule now that the new administration seems to be taking a more hands-off approach to defending Obama-era regulatory actions. The fate of any such legal challenges is difficult to predict at this point, but what is certain is that we have not yet heard the last of this issue.

[visitaag]

Do You Really Know How To Manage An OSHA Inspection?

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why employers should take certain steps. You may already know to take photos whenever the Compliance Officer (CO) takes shots and to take notes. But do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued six months later?

Plan In Advance Every company site should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know whom to call to obtain guidance. No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation.

At most, site management can deal with evacuating and protecting employees, and dealing with first responders. The company needs a system in place so that with one call the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and media management. Set up this system and practice response. Do not assume that you will never face a fatality or catastrophe. Tornadoes, vehicular accidents, and workplace violence can strike any employer.

Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now dictated by the current administration. OSHA is a great organization, but even seemingly minor-sounding citations can harm the business. In some industries, a single citation classified as “serious” can harm bidding opportunities. Most of the recent six figure citations have involved repeat violations of routine items such as a missing electric cabinet switch label, a damaged extension cord, partially blocked electric cabinet, or one employee who missed his annual training.

Each violation can serve as the basis for a repeat violation of up to $70,000 per item at ANY company location in any Fed-OSHA state for five years. No inspection is minor. And by the way, OSHA’s improved IT system will allow the agency to better track your corporation’s performance, even when the company operates under many names.

Manage The Inspection Step one is to ask “why” OSHA is present. Many inspections are triggered by a complaint and OSHA must tell you the reasons. As of this January 2015, employers in Fed-OSHA states must report to OSHA every hospitalization for more than observation, as well as all amputations. An amputation can be as modest as a tip of a finger. These focused responses increase the probability of an OSHA visit.

In each of these circumstances, admit OSHA for the purpose of the complaint and limit the inspection to the scope of the complaint. OSHA will broaden the inspection if the officials observe hazards or if employees mention other hazards. But require OSHA to justify expanding the scope. Be courteous and professional with the Compliance Officer but know and exercise your rights. Always focus first on safety, but that attitude does not preclude making OSHA live by its own procedures.

Recognize that OSHA must establish: 1) an applicable standard; 2) a hazard; 3) employee exposure; and 4) that the employer knew of the violation or hazard, or should have known of it with the exercise of “reasonable diligence.” Make sure that a hazard exists. Measure fall distances, check guards, etc. The burden is on OSHA to prove these four elements, so check to see if OSHA can prove that any employees were exposed in the last six months or would reasonably be expected to be exposed in the normal course of business. Is the area isolated? Do employees work near the alleged hazard? How often do employees travel in that area? How long was the hazard present?

OSHA may not document the employer’s “knowledge” of a violation. Any supervising employee’s knowledge of a violation is “imputed” to the company, and even when OSHA cannot prove that a supervising employee knew of the issue, they can establish this element by showing that the employer should have known of the violation with the “exercise of reasonable diligence.”

So OSHA must prove that the employer didn’t enforce safety rules, training was inadequate or the employer made little effort to provide oversight. Show that the company did exercise this due diligence. Other important questions include how long a violation was present, when supervisory employees were last in the area, and whether the employer did any walk-arounds or inspections.

Take Your Time Don’t be rushed and bullied about documents. Some documents such as OSHA Form 300s and MSDSs must be promptly provided, but you have the right to a reasonable amount of time to provide other materials. Review them. Consider if materials may be privileged or protected work product. Don’t volunteer self-audits, insurance and consultant reports or other similar materials without talking to counsel.

If documentation is weak, try to determine where on-the-job instruction occurred or where oral instructions were provided. Counsel may be able to use such information as defenses, to reduce the classification, or to build good will. Obtain legal guidance: remember that if you knew of a standard’s requirement and did not follow it, there is a possibility that OSHA might assert a “willful” classification.

In developing defenses dig, dig, dig. There are always more facts. Don’t delegate. Ask the questions yourself.

Exercise your right to sit in on or have counsel attend interviews of any employee who supervises employees because they can bind the company. If a fatality, project delay, or any ancillary legal matter is involved, explain to OSHA that an additional concern is with protecting the company in other legal arenas.

You have an absolute right to sit in with managers but you might as well show courtesy to the Compliance Officer. This is probably a time to involve outside counsel. You may also want to contact counsel about whether OSHA will define an employee as a supervisor. OSHA uses a broader definition than the NLRB, or the wage-hour division.

OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed, and that you appreciate their cooperation and to tell the truth. Sometimes it is okay to tell them the topics OSHA may discuss and that may allow a bit of briefing, but mainly encourage them to tell the truth. Ensure that employees know that you appreciate their cooperation with OSHA. OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.

Multiemployer worksites present special challenges. When more than one employer is on site, OSHA can cite the employee’s employer (the “exposing employer”) and the “supervising” employer who was directing the work (such as at construction sites or for contingent workers) or the “creating” employer who generated the hazard, or the “correcting” employer who was responsible to address the hazard, or all of the above!

Unfortunately, it often seems that one employer on site will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus. Be alert.

Push Back Do go to the OSHA Informal Conference after citations are issued, and do contest all citations if you have reasonable arguments. Remember that OSHA focuses on safety and does not consider whether the Secretary can carry its burdens before a Judge, but their attorneys do recognize this reality. Negotiations may be fruitful, but don’t contest the matter if you have nothing to back up your claims.

So long as you ensure OSHA knows that you will and are addressing any hazards, they will understand that your decision is dictated by business necessity and does not show a disregard for safety.

Finally. Do not miss the contest period! And be aware that many of the “State-OSHA plans” have different appeal processes.