Federal agencies Regulation Recordkeeping

More data, more problems?

A forthcoming rule may increase the amount and timeliness of injury data available to OSHA and the public. But stakeholders have concerns.

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Unintentional effects

Some safety professionals believe broad public release of employer injury data may hamper their efforts to improve workplace safety. James Thornton, environmental, health and safety strategy and regulatory affairs director for Virginia-based Newport News Shipbuilding, explained during the January meeting how musculoskeletal disorders are addressed at his company. Thornton said the shipbuilder tries various intervention efforts for workers exhibiting different types of MSDs, and these do not necessarily lead to a recordable.

But if the intervention efforts fail, the best protection may be moving people into other jobs. This can then create a recordability issue affecting an employer’s DART rate.

“There was an increase in the injury rate, which would need to be explained,” Thornton said. “Well, the reason is we’re trying programs that are better and will eventually smooth out and decrease injuries.”

Employers that consistently fail to follow the law deserve to be shamed through the release of their data, according to Dave Heidorn, manager of government affairs and policy at the American Society of Safety Engineers. However, Heidorn shares Thornton’s concerns that employers trying to do the right thing could unintentionally be cast in a bad light that may hurt them during a competitive bidding process.

As such, some safety professionals fear the public release of injury data could make their job harder because employers will be more concerned about the bottom line. “They’re fearful of losing their ability to lead on safety, and they’ll just be asked, ‘Any data that comes out, fix it,’” Heidorn said.

Eric Frumin, health and safety director at the labor union coalition Change to Win, rejected arguments that the public release would be so harmful. At present, both current and former workers – and, in some situations, unions – are legally allowed access to injury and illness records.

Additionally, the public release of injury data is not new for OSHA. Each year, the agency collects injury and illness information from about 80,000 employers as part of its OSHA Data Initiative. This data – which identifies employers – is freely accessible on the agency’s website. To date, Frumin alleges, employers have not been harmed by the initiative.

Under the proposed rule, instead of tens of thousands of employers’ data available online, it would be hundreds of thousands. Essentially, all that is changing is the number of worksites covered and, for employers with 250 or more workers, more data will be reported.

“It’s much more of the same,” Frumin said.

Accurate data

Does more data necessarily mean more good data?

“Employers may have a valid concern in reporting their injuries and illnesses if this data is to be published online,” Trippler said. “Such a concern could lead some employers to therefore underreport their injuries and illnesses so as to ensure things such as privacy concerns, company trade secrets or the needs to show their company in a more positive light to the public.”

Underreported data could affect how OSHA and other researchers prioritize injury and illness efforts. Ensuring accurate data is not a new challenge for OSHA. As the U.S. Chamber of Commerce points out, OSHA officials – under the current administration – have expressed doubts about the accuracy of Bureau of Labor Statistics injury data. This data comes directly from logs kept and maintained by employers – the same logs OSHA is looking to collect more of.

To address this issue, OSHA this past August floated the idea of strengthening the rule with whistleblower protections. Specifically, OSHA asked for feedback on amending the proposed rule to:

  • Require employers to inform workers of their right to report injuries
  • Require employers to have a “reasonable and not unduly burdensome” mechanism for employees to report injuries
  • Prohibit employers from punishing workers who report injuries and illnesses

The official comment period for the proposed whistleblower changes closed Oct. 14.

Next steps?

To get beyond the impasse, some stakeholders suggest that OSHA move forward with the collection, but not the public release, of the injury and illness data.

Trippler, who declined to specifically comment on the prospects of this idea, noted that the data’s public release is a major part of the proposal and removing it would be a substantial change in direction for the agency. This would, in a sense, result in a completely different rulemaking.

It also would be an unworkable move, Frumin claims. When an agency collects data, it has to have a good reason to withhold it from the public in response to Freedom of Information Act requests. Because OSHA already releases similar injury and illness data that identifies employers through the OSHA Data Initiative, Frumin said the agency would not have a good reason for withholding the additional data to be collected under the proposed rule.

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