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Where does OSHA draw the line?

Posted On: Jun. 12, 2016 12:00 AM CST

Several Occupational Safety and Health Administration actions are driven by its concern that employers actively discourage or retaliate against employees who report injuries and illnesses, but some stakeholders are worried the federal agency may have lost sight of its core mission: safety.

OSHA's electronic record-keeping rule published in May, the latest example of the trend, has raised concerns about its plan to collect and publish injury and illness information on a yet-to-be-finalized web platform, its stance against mandatory post-incident drug testing policies and its creation of a citation-based process to handle retaliation allegations.

“The employers I work with are trying to do safety right, they're trying to incentivize reporting of injuries and they're trying to comply with OSHA, but OSHA's just always raising the bar and making it more difficult,” said Jason Mills, a Los Angeles-based partner at law firm Morgan, Lewis & Bockius L.L.P.

Additionally, at a time when cyber risk is top of mind for risk managers, the requirement to electronically submit injury and illness information is a major concern, said Robert Cartwright Jr., Exton, Pennsylvania-based safety and health manager at Bridgestone Retail Operations L.L.C. and treasurer of the Risk & Insurance Management Society Inc.

“Now that we're going to have all of our information and all of our data put out to a database, where is the security of that web-based application? We have potential new cyber exposures as a result,” Mr. Cartwright said.

The electronic record-keeping rule also may discourage employers from reporting minor safety mishaps to keep their incident rates low since the information will be made public, he said.

Not only does the rule provide an incentive not to record questionable cases, it also encourages employees disciplined for legitimate reasons to claim retaliation, said Ron Taylor, Baltimore-based head of Venable L.L.P.'s Maryland labor and employment practice group. “That represents a real intrusion of OSHA into the employer-employee relationship at a workplace unrelated to safety.”

However, David Michaels, assistant secretary of labor for occupational safety and health, said the agency does not require recording of minor incidents and is focused on serious injuries requiring treatment beyond first aid.

“I've never seen evidence that there is overrecording of minor injuries,” Mr. Michaels said. “There's compelling evidence there's extensive underrecording of serious injuries.”

The agency also used the rule to reiterate its opposition to employee incentive programs based on lagging indicators such as injury and illness rates — a stance repeated late last year in a draft update to its safety and health program management guidelines.

However, some experts have accused OSHA of inconsistency or even hypocrisy because the data to be published online will be injury and illness rates.

“OSHA probably ought to listen to its own advice,” David Sarvadi, a Washington-based partner at Keller & Heckman L.L.P., testified during a congressional hearing last month on behalf of the Coalition for Workplace Safety. “They've been telling employers for more than 10 years that employers should be providing and looking for more leading indicators and focused on leading indicators.”

The agency has engaged with various associations on developing leading indicators, “but every one of those injury reports is a real person who's been hurt,” Mr. Michaels said.

Lisa Sprick, president of Corvallis, Oregon-based Sprick Roofing Co. Inc., said she shares OSHA's intent to ensure employees are not deterred from reporting injuries and illnesses.

“We ... encourage our employees to report near misses so we can identify problems and prevent injuries from occurring,” she said. “But this regulation and the other OSHA actions have produced much ambiguity with respect to how OSHA views incentive programs.”

The agency also has engaged in efforts to tackle retaliation against employees.

The electronic record-keeping rule is the latest major manifestation of that trend, but the Labor Department also has sued employers for disciplining employees for failing to immediately report workplace injuries in line with company policy, and for suspending and terminating employees who reported workplace safety hazards.

These lawsuits have forced reconsideration of long-standing workplace safety policies, with some lawyers advising clients not to discipline employees for failing to quickly report injuries and illnesses.

Others wonder whether OSHA has lost sight of its core mission.

“The administration has been preoccupied with retaliation and neglected, in my way of thinking, safety enforcement in recent years,” said Howard Mavity, an Atlanta-based partner at Fisher & Phillips L.L.P. “In an era where OSHA desperately needs more money, they're really wasting a lot of money on a problem that to me is less urgent than keeping people alive.”

Rather than fighting OSHA, employers should collaborate with the agency on possible solutions, Mr. Cartwright said.

“Employers need to look at OSHA not as the evil lord or the dark hole where things disappear into,” he said. “They're very transparent, and they're extremely helpful, and they want to know more about what stakeholders are concerned about. It's really incumbent on the risk manager to be aware of these changes and to be vocal about what their concerns are and feed them back into OSHA, because OSHA's looking for that. You can't fix what you don't know.”