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Injury reporting rule raises privacy concerns

Posted On: May. 18, 2016 12:00 AM CST

Business associations remain concerned that the U.S. Occupational Safety and Health Administration will inadvertently release employees' personal information when they create a public database for employer injury and illness reports, despite the agency's vow to protect the information.

The new rule, published last week and effective Jan. 1, 2017, requires certain employers to annually electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms. But OSHA's plans to publicize information gathered via these electronic reports have raised numerous concerns among employer representatives.

While David Michaels, assistant secretary of Labor for Occupational Safety and Health, has pledged the agency will scrub the public reports of employees' personally identifiable information, stakeholders expressed doubts about OSHA's ability to do so.

Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce in Washington, specifically noted during a stakeholder call last week that OSHA currently publishes personal details related to fatalities directly on the home page of its website.

“Fatalities are very much in a different category,” Mr. Michaels said in response to Mr. Freedman. “They're public events. There are generally police reports, and there are newspaper articles about them, so the legal issues about putting up information about worker deaths are quite different from injuries.”

For most employers, the agency will only receive aggregate information on total number of injuries and the hours worked and will scrub personal information from those employers submitting more granular data, Mr. Michaels said.

“We're quite confident by the time that we set this program up we'll have accurate cleaning of this information,” he said.

OSHA will also begin to publish specific information about individual employers deemed severe violators of workplace safety law and regulations, he said, although he did not give a timeframe for doing so.

“This is all a work in progress, and we're trying to essentially utilize this public disclosure to try to drive behavior, and I think this will really help us get there,” Mr. Michaels said.

However, employers continually complain about OSHA's regulation by public shaming approach, as seen in both the electronic recordkeeping rule and the constant flow of press releases issued by OSHA, including when an employer is deemed a severe violator of workplace safety rules, stakeholders said.

“No employer wants to have an accident, period,” said Melissa Bailey, a Washington-based shareholder with Ogletree Deakins Nash Smoak & Stewart P.C. “I don't know how reading a press release is going to make an employer act differently than it's already acting.”

Citations and fines are often reduced or dismissed during the post-issuance conference or dispute process, yet no follow-up releases are issued, she added.

“All this damage has been done to this company from a reputational standpoint, with its employees, with its customers, and that damage is irreparable,” Ms. Bailey said.

“The public shaming is extremely frustrating and disappointing to employers who would rather work with the agency in a cooperative, collaborative way to make the workplace safer,” said Amanda Wood, director of labor and employment policy for the National Association of Manufacturers in Washington.

The public disclosure of the raw data in the electronic recordkeeping rules is particularly problematic, Ms. Wood said, adding that she had just received an email from a small company expressing concern that it would be easy to identify injured employees from their public reports given the size of their company and the small number of recordable incidents per year.

“Employees' privacy — who got injured, what the injury was — is a concern for our employers because they want to protect their employees and their employees' privacy,” she said.

These employers are not reassured by the agency's pledge to protect the information, Ms. Wood said.

“I wouldn't expect (Mr.) Michaels would say anything differently, but our members do have concerns,” she said. “Does OSHA have the budget and the resources to do it?”