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.