OSHA: New recordkeeping rule will make injury data public; is a ‘nudge’ to employers

UPDATE: This story has been updated to include comments from the May 11 OSHA press conference announcing the new rule. It also clarifies that injury and illness data must be submitted annually, not quarterly as stated in the proposed rule.

Washington – OSHA has issued a final rule that will require employers to electronically submit worker injury and illness data, which then – in a controversial move – will be made public.

“We expect a simple change to improve safety for workers across the country for many reasons,” OSHA administrator David Michaels said during a May 11 press conference. “Behavioral economics tells us that making injury information publicly available will nudge employers to focus on safety. As we’ve seen in many examples, more attention to safety will save the lives and limbs of many workers and will ultimately help the employer’s bottom line as well.”

The Improve Tracking of Workplace Injuries and Illnesses final rule states that establishments with at least 250 workers must electronically submit to OSHA – on an annual basis – information from their OSHA Forms 300, 300A and 301. Establishments with 20 to 249 employees in certain high-hazard industries will be required to submit information from their annual summary form, OSHA Form 300A.

The information will then be made available on OSHA’s website in a searchable database that the agency claims will be the “largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread and evaluate the effectiveness of injury and illness prevention activities.”

The final rule will cover about 476,000 establishments – including 34,000 larger employers – and will cost about $15 million total per year, Michaels said.

OSHA says the rule will allow the agency to receive more accurate and timelier data, and that all personal information will be removed before reports are made public. The rule also emphasizes workers’ rights to report injuries without fear of retaliation, and states that employers must have an appropriate reporting procedure that does not deter workers from reporting.

“We certainly want to get the word out that programs and policies that discourage workers from reporting injuries or illnesses are not going to be permitted, and that retaliation against workers for reporting an injury or illness is not permitted,” Michaels said. “Both of those would be violations of the standard. OSHA could issue a citation and require abatement.”

The rule also may encourage employers to compare themselves to their peers and challenge themselves to have safer records, Michaels said.

“We think employers want to be seen as top performers, and they will work to get there,” he added.

Some stakeholders have raised concerns about whether making injury and illness data public will contribute to underreporting, and question if the agency has the resources and the ability to “scrub” information to ensure the privacy of injured workers.

Despite budget constraints, Michaels said, OSHA “absolutely” has enough staff to remove private information from the data.

“The additional burden is simply sending us the information,” Michaels said. “Large employers already have all this electronically, but we will set up a system that will make it very easy for small employers to do that. So we expect the cost to be quite low.”

The U.S. Chamber of Commerce claims the rule is misguided. “Instead of improving workplace safety, this will only create a new filing requirement that will lead to sensitive employer data being published without context or explanation,” Randy Johnson, senior vice president for labor, immigration, and employee benefits for COC, said in a statement. “The agency’s excessive reporting requirements will lead to employers being falsely branded as unsafe and will not reflect a company’s commitment to maintaining a safe workplace. Additionally, OSHA’s obsession with shaming employers has not led to better results in workplace safety and this regulation will not change that trend.”

Other groups are embracing the rule.

“The new OSHA injury reporting rules will bring workplace injury and illness reporting into the 21st century and provide important new protections to workers who report injuries,” Richard Trumka, president of the AFL-CIO, said in a statement. “Until now, most workplace injury records have only been available at the workplace, making it impossible to know which employers have bad or good injury records.”

The National Council for Occupational Safety and Health called the rule “an important step towards transparency.”

“The more we know, the more we can do to prevent injuries and illnesses from happening in the first place, with effective safety programs centered on worker participation,” National COSH Acting Executive Director Jessica Martinez said in a statement.

The rule is scheduled to go into effect Jan. 1, 2017. Requirements will be phased in over two years, with the first set of data due to OSHA by July 1, 2017.