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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.

November 23, 2014

Key points

  • Collecting more data on a regular basis can help OSHA and researchers identify developing problems in a more timely manner, the agency asserts.
  • Because the publicly released data will identify companies, some safety professionals fear the rules could lead to the underreporting of injuries, as well as employers focusing more on lagging data management and less on leading preventive initiatives.
  • Stakeholders have questioned whether OSHA is up to the task of removing private employee information from thousands of injury logs intended for public view.

Hundreds of thousands of U.S. employers are required to keep and maintain injury records. This data, which could be used to identify emerging trends or help improve injury prevention efforts, is – for the most part – kept out of public view.

OSHA is aiming to change that.

The agency is pursuing two unrelated rulemakings that would require employers to turn over, on a regular basis, much of their injury and illness data. The first was published in September and, beginning Jan. 1, will require employers to report to OSHA workplace incidents such as hospitalizations and amputations. (See Part 1 of this series, New OSHA reporting requirements.)

The second rule – which at press time was going through the rulemaking process – is broader in scope. Through the collection of massive amounts of employer injury data, the rule has the potential to offer a much clearer picture of the injuries occurring.

“The proposed rule may help increase workplace safety by making timely, establishment-specific injury/illness information public and easily available so employers, employees and researchers can work together on improving workplace safety,” Jim Johnson, vice president of Workplace Safety Initiatives for the National Safety Council, said in comments submitted to OSHA in support of the rule.

However, not everyone is pleased. Concerns are being raised about privacy issues, data accuracy and whether OSHA can handle what the rule is proposing.

Improve Tracking of Workplace Injuries and Illnesses

Introduced in November 2013, OSHA’s Improve Tracking of Workplace Injuries and Illnesses rule proposes updating and modernizing the agency’s injury and illness reporting system. The rule would apply only to employers currently required to keep and maintain injury and illness logs.

Employers with more than 250 workers would be required to electronically submit – on a quarterly basis – information from their injury and illness records. Similarly, employers with 20 to 249 employees in industries that have a days away from work, job restriction or job transfer rate averaging 2.0 or greater would be required to electronically submit information from their annual summary form (OSHA 300a).

Enterprises with multiple worksites would be responsible for reporting to OSHA the injuries and illnesses at each of those sites, as well as any companies falling under its umbrella. This provision is known as enterprise-wide reporting, which OSHA claims could help detect systematic safety problems at a corporation.

OSHA would make much of the data it collects available on its website as part of a searchable database, including:

  • All data fields from the 300a form
  • All data fields from the 300 form (log of work-related injuries and illnesses), except the employee’s name
  • Certain data fields from the OSHA 301 form (incident report), including the time of the event, what the employee was doing prior to the incident, what occurred, what the injury or illness was, and what object directly harmed the employee

Final action on the rule is expected in March, according to the spring 2014 regulatory agenda. An OSHA representative did not respond to questions about whether the rule is on track to be issued this spring.

Broader, electronic collection

OSHA has repeatedly stated that the proposal does not change many existing rules for employers that currently must keep records and does not affect employers not covered by recordkeeping regulations.

“This proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA,” agency chief David Michaels said in a November 2013 statement announcing the proposed rule.

However, the American Industrial Hygiene Association has raised concerns that the rule could lead to a shift in resources for employers: Instead of focusing on injury prevention, they might become more concerned about data management.

“Employers only have so many resources to devote to all functions of the workplace – health and safety included,” Aaron Trippler, government affairs director for Falls Church, VA-based AIHA, told Safety+Health.

Some employers may feel a need to increase resources for data collection to help ensure accuracy because the data is being released to the public. Although OSHA estimates that employers will need an average of 29 minutes per quarter to submit the data, the agency acknowledges that large establishments with many recordables may be looking at “multiple hours.”

Privacy concerns

The most controversial aspect of the rule is the public release of injury and illness data.

“Do I want researchers to have access to good data? Absolutely. I don’t think that means it needs to be on the World Wide Web and identifiable by my enterprise, and my ZIP code,” Miles Free, director of industry research and technology for the Cleveland-based Precision Machined Products Association, said during a January 2014 public meeting on the proposal.

Several individuals and organizations – including the National Safety Council – are concerned about how OSHA will ensure the privacy of the injured worker.

The agency has said it would be responsible for “scrubbing” personal data off the logs it releases to the public. Given the thousands of logs the agency would come across every quarter, many attendees at the January meeting questioned OSHA’s ability to do that.

“Are you really prepared to do that for all the stuff that’s going to come in quarterly, and do you have the resources for that?” Marc Freedman, executive director of labor law policy with the U.S. Chamber of Commerce, asked during the meeting. “That sounds like a substantial job that’s going to have to happen.”

Some of this personal data may be easy to remove. Information contained in specific data fields, such as the employee’s name, address and date of birth, can be wholly blocked out for public release. Scrubbing employees’ personal information from the narrative fields – which describe in detail what occurred and how – may not be so easy. It would entail scanning the narrative for the information and eliminating it, as opposed to simply blocking out an entire data field.

Some stakeholders assert that even if an injured worker’s personal details were “scrubbed” from the data OSHA releases, it still may be possible to identify that injured worker – especially in tight-knit communities.

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.