OSHA Injury and Illness Name-and-Shame Rule

Under the guise of improving safety in the workplace, the Occupational Safety and Health Administration announced a proposed rule called “Improve Tracking of Workplace Injuries and Illnesses.”

OSHA regulation will require employers with 250 or more employees to continue recording occupational injuries and illnesses, but now will report the data to OSHA on a quarterly basis. In addition, employers with 20 or more employees will report injury and illnesses annually. Then OSHA will create a public website that will display the injury and illness data submitted by employers. Yet OSHA has not yet established how “the electronic reporting system and the implementation of the electronic reporting requirement” will be administered.

Proponents of the rule claim:

“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. The proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.”

While enhancing workplace safety is a noble goal, OSHA fails to provide evidence that publicly naming employers with employee injuries and illnesses is beneficial. For instance, OSHA does not quantify the benefits of improved tracking of workplace injury and illness, but still purports that the benefits exceed the costs:

OSHA estimates that this rule will have economic costs of $11.9 million per year, including $10.5 million per year to the private sector, with costs of $183 per year for affected establishments with 250 or more employees and $9 per year for affected establishments with 20 or more employees in designated industries. The Agency believes that the annual benefits, while unquantified [emphasis added], significantly exceed the annual costs.”

Here is the list of the unquantified benefits OSHA uses to support its claims that publicizing injury and illness information will improve safety:

  • Better compliance with OSHA’s statutory directive “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)) “by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
  • Increased workplace safety as a result of expanded OSHA access to timely, establishment-specific injury/illness information. OSHA 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, in general and/or from specific hazards, and to target its compliance assistance and enforcement efforts accordingly.
  • Increased workplace safety as a result of making timely, establishment-specific injury/illness information public and easily available to employers. Public access to this information will encourage employers to maintain and improve workplace safety/health in order to support their reputations as good places to work and/or do business with. Employers will also be able to compare their own injury/illness rates to those of other employers.
  • Increased workplace safety as a result of making timely, establishment-specific injury/illness information public and easily available to employees, employee representatives, and potential employees. Public access to this information will allow current employees to compare their workplaces to the best workplaces for safety and health and will allow potential employees to make more informed decisions about potential places of employment.
  • Increased workplace safety as a result of making timely, establishment-specific injury/illness information public and easily available to customers and potential customers. Public access to this information will allow members of the public to make more informed decisions about current and potential companies with which to do business.
  • Improved research on occupational safety and health. Public access to timely, establishment-specific injury and illness information will allow researchers to identify patterns of injuries or illnesses that are masked by the aggregation of injury/illness data in existing data sources.

Comments submitted by the National Roofing Contractors Association question the above “benefits.” Specifically, that OSHA’s “absence of specific, defined benefits resulting from its implementation other than the unsupported conclusion by the agency of ‘increased workplace safety.'”

Further critiques from NRCA:

“the purported benefit of the proposal seems to be in conflict with long-standing risk management and safety and health management system principles in which the employer is primarily tasked with the obligation to identify and control workplace hazards; in fact, OSHA’s Injury and Illness Prevention Program proposal is expected to rely on this core principle as well. NRCA does not want to diminish the significance of properly conceived government and third-party research into occupational hazards and controls; however, it is difficult to rely on mere speculation of a beneficial result from the establishment of such an enormous and costly database without examples of effective results from previous, similar regulations…Adding employer reporting burdens that promise unspecified and elusive benefits diverts valuable resources from proven risk management protocols that conclusively protect workers.”

Other than the fact OSHA’s benefits are considered by some to be mere speculation, many believe the rule will be used primarily to name and shame employers. In ForbesJanet Novack wrote:

“For the last five years, OSHA has been naming and shaming employers for safety violations. Long before litigation, OSHA issues press releases that contain bombastic statements and mentions of citations that are subsequently reduced or tossed. OSHA even uses this approach for smaller or even routine citations, many involving an isolated location of a large company. It may be months or years before the actual facts are revealed. By the time an employer is vindicated, the damage is done and customers are lost. And now, OSHA wants more data to use publicly? It’s possible this information will be misconstrued and used unfairly to sully the reputations of employers.”

Another critic who believes the OSHA rule is nothing more than name and shame tactic is Mark Costello, the Oklahoma Labor Commissioner. Costello said:

“This proposed regulation is a federal government overreach that will invite distortion of a company’s safety record and encourage unions, trial lawyers and other adversaries of the marketplace to use the data against the backbone of the economy, American businesses. The proposed use of data does not tell the full story about the circumstances surrounding an injury and efforts to prevent such injury by the business owner.”

And there is little doubt unions will pounce at the opportunity to incorporate the public injury and illness data, which Brett McMahon — president of Miller & Long DC Inc., a concrete contractor — compares to “reading just the plaintiff’s side of a case,” into the tactic known as a “corporate campaign.”

The increasingly used tactic of corporate campaigns refers to the union organizing strategy that uses an arsenal of legal, political, and public relations attacks to smear a company’s reputation into acceding to the union demands.