OSHA Takes Steps to Finalize Electronic Recordkeeping Rule
On October 5, the Occupational Safety and Health Administration (OSHA) submitted a draft final rule for OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” to the Office of Information and Regulatory Affairs (OIRA). OIRA, part of the president’s Office of Management and Budget (OMB), is required to review all draft and final standards as well as all regulatory actions before implementation. While OIRA has 90 days to conduct its review, in most cases review takes less time. In other circumstances, however, the agency may seek to extend the review period.
The original rule OSHA proposed in November 2013, on which CUPA-HR filed comments, would require most employers to electronically report injury and illness recordkeeping data to OSHA on a quarterly basis — including employer, location and incident-specific information. Furthermore, the proposed rule outlined plans to create a searchable website where OSHA would make employers’ data publicly available. OSHA states in the preamble to the original rule that making the information public will provide employees, potential employees, consumers, labor organizations, businesses and other members of the public with important information about companies’ workplace safety records.
Employer groups have argued, however, that OSHA would be making the data public without context, and as a result the information would not accurately reflect companies’ safety records. Many injuries that have no bearing on an employer’s safety program would be recorded (such as accidents outside the employer’s control), and the employer’s injury and illness rates over time as compared to similarly-sized companies in the same industry facing the same challenges would not be available, leaving the data highly vulnerable to misinterpretation.
In August 2014, OSHA issued a supplemental notice of proposed rulemaking to complement the proposed rule by including additional provisions to: 1) require employers to inform their employees of their right to report injuries and illnesses; 2) clearly outline the requirement that any injury or illness reporting policies established by the employer be reasonable and not unduly burdensome for the employee; and 3) provide OSHA with a means of preventing employers from retaliating against employees for reporting injuries and illnesses.
The fact that OSHA has a sent a draft final rule to OIRA is a strong indicator that OSHA anticipates issuing the final rule in the near future — OIRA review is the last hurdle in the federal rulemaking process and once it is completed, OSHA will be able to publish the final rule in the Federal Register.