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Employers worry OSHA rule could cast unfair light on injury data

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Stakeholders have major concerns about the fairness of and potential data manipulation under the U.S. Occupational Safety and Health Administration's final electronic record-keeping rule.

The new rule, published Wednesday and effective Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms, with the agency planning to publish some of the information on its website.

Companies with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit information on their 2016 injuries and illnesses by July 1, 2017, and their 2017 information by July 1, 2018. Beginning in 2019, the information must be submitted by March 2 of each year, according to the rule.

“It's going to add an extra step, an additional administrative burden and another deadline that (employers) need to watch out for,” said Charlie Morgan, an Atlanta-based partner with law firm Alston & Bird L.L.P. “Because of this new focus and the new public disclosure, that presumably means OSHA and others are going to be double-checking records in a way that they really couldn't before, so it's even more reason to make sure that the people who are responsible for making the record-keeping decisions are well-trained and that there are checks and balances on that process to make sure the records are accurate.”

Federal law requires employers to maintain logs recording injuries and illnesses, of which there are roughly 3 million each year, David Michaels, assistant secretary of Labor for Occupational Safety and Health, said during a stakeholder call on Wednesday. But prior to the rule, this information was not automatically sent to OSHA and was usually seen by only a handful of people at worksites and by the occasional OSHA inspector, he said. The agency plans to change that by making some of this information publicly available, which will “nudge” employers to increase their focus on safety and preventing workplace injuries and illnesses, he said.

But injury and illness rates do not tell the whole story when it comes to the safety of an employer's workplace, stakeholders say.

“Anytime you look at reactive indicators such as injuries and illnesses, you have to understand that it's not a measurement of performance,” said Michael Belcher, president of the Park Ridge, Illinois-based American Society of Safety Engineers. “It's telling you where you've been, not where you're going, and it's not a reliable benchmark when you try to compare one organization against another based on those measurements.”

“The problem with public disclosure is that people are going to misinterpret the data,” he added. “It's not a reliable way of measuring whether a company is performing well.”

The public information element could actually work against OSHA's intentions by discouraging employers from recording all injuries and illnesses, according to stakeholders.

“I think there's strong potential there,” Mr. Morgan said. “Should that happen? Of course not. Could that happen? I can certainly see it.”

Employers could also start to report injuries and illnesses under different company names and addresses, Mr. Belcher said.

“If employers start getting pressure to reduce those numbers because they're shamed into trying to make themselves look good … they're going to manipulate the numbers or they're going to manipulate the system,” he said. “There are so many ways you can manipulate the system.”