OSHA PROPOSAL CALLED UNNECESSARYPosted On: Sep. 21, 1997 12:00 AM CST
WASHINGTON-Employers fear that a safety reporting proposal designed to cut paperwork could actually increase their compliance burden and make them more vulnerable to litigation.
In addition, the Occupational Safety and Health Administration's proposed record-keeping requirements could be used to push for the promulgation of a national ergonomics standard, warned one witness testifying last week before the House Small Business Committee.
The Risk & Insurance Management Society Inc. also is concerned about the OSHA reporting proposal, said Lance Ewing, chairman of RIMS' Health and Safety Committee.
"In principle, I guess OSHA is on the right track in attempting to reduce paperwork, but there are some major bridges to cross before it becomes cost-effective to employers. I guess the two biggest concerns are the records themselves and the proposal for access privileges," said Mr. Ewing, who also serves as loss control administrator for the Philadelphia School District.
"First of all, I think OSHA is asking the employer to do what is already being done through the workers compensation system. It's bad enough for an employer to have to fill out the existing paperwork requirements for an injured employee, then you would have to add OSHA's requirements on top of that," Mr. Ewing said. "Risk managers and safety experts don't routinely review OSHA law to determine where accidents occur; they review workers comp records," he said.
"OSHA's proposal is, in my opinion, a plaintiffs attorney's dream. They'd have access to personnel files," said Mr. Ewing.
According to Rep. James Talent, R-Mo., chairman of the House Small Business Committee, the proposal, first published in the Federal Register on Feb. 2, 1996, but not yet implemented, would, among other things:
Require all businesses that keep records to record a number of minor kinds of injuries, such as minor swellings or skin irritations, that heretofore they have not had to record.
Require all businesses to give copies of injury or illness records on all their employees to any other current or former employee who asked for the records.
Would require general contractors to keep a duplicate set of records for the employees of their subcontractors and to certify the accuracy of records at pain of criminal penalties.
Maintain the current definition of "work-related," which stipulates in part that an injury or illness that is first detected while working is considered to be work-related.
Employers have criticized this definition as too broad.
Redefine "injury or illness" as "any sign, symptom or laboratory abnormality which indicates an adverse change in any employee's anatomical, biochemical, physiological, functional or psychological condition."
This, too, has come under fire for being far too broad. Although the proposal would exempt employers from reporting maladies treated by first aid, the proposal includes a broad range of musculoskeletal disorders in its recording requirements.
OSHA can implement the proposed change without congressional approval. Congress, however, could effectively scuttle any such move by specifying that appropriations could not be used to enforce the change. Congress used that authority a few years ago to block OSHA's proposed ergonomics standard, holding that funds could not even be used to study the matter.
Gregory Watchman, the acting assistant secretary of labor for occupational safety and health, assured committee members that OSHA is making every effort to consult with all of its stakeholders-business, labor and others-as it proceeds with the record-keeping proposal.
Mr. Watchman pointed out that the proposal would exempt many companies with fewer than 20 employees from the reporting requirements as opposed to the current exemption limited to those companies with 10 or fewer employees. The proposal also would exempt employers with exemplary safety records as well as certain types of industries, he said.
He also told the panel that OSHA estimates that the number of workplaces required to keep the records also would drop significantly from the number of companies that currently have recordkeeping requirements. He said OSHA estimates the proposed regulations would affect 620,000 workplaces rather than the 756,000 covered under current regulations.
OSHA also estimates the proposed rule would cost employers $4.7 million less per year to comply with than the current rule, he added.
Rep. Talent disputed the 620,000 workplace figure, citing a Small Business Administration study that holds that 1.4 million workplaces would be covered by the proposal.
Mr. Watchman said OSHA would have to analyze the SBA data.
Several witnesses told the committee that a greater concern than the number of workplaces covered by the proposed regulations was the nature of the rules themselves.
After testifying that he believed OSHA had "grossly underestimated" the cost of compliance, attorney Lawrence Halprin raised concerns about the proposals' relationship to promulgation of OSHA's stalled ergonomics proposal. Businesses have long opposed such a standard, holding that the scientific evidence to justify such a new regulation simply doesn't exist.
Mr. Halprin, a partner in the Washington law firm Keller & Heckman L.L.P., said the proposal would set a broad definition of musculoskeletal injuries that would in turn have to be recorded. That would mean that a large number of ergonomics injuries would be included in the workplace logs.
Mr. Halprin argued that OSHA could then push for the ergonomics standard because of an alleged "epidemic" of ergonomics cases. The purpose of the proposal should not be to stake out the scope of an ergonomics standard, he said.
The proposal's call for expanding access to safety records to include employees, former employees and designated employee representatives also drew criticism from several witnesses.
"Can you imagine plaintiffs attorneys coming through the doors and demanding to see personnel files?" asked Eamonn McGeady, president of Martin Imbach Inc., a Baltimore-based marine construction company.
Another construction firm executive spoke against the open-records provision on behalf of Associated Builders & Contractors, a Rosslyn, Va.-based construction trade association. The group supports what it calls the "merit shop" policy of awarding construction contracts to the lowest responsible bidder, regardless of labor affiliation, through open and competitive bidding.
"ABC strongly believes that privacy issues are of great concern, and while employees should have access to general information about injuries which occur on their worksite, they have no right to obtain the personal medical information of others contained in the incident report that the proposed regulation would disclose," said Alan McComb, vp of Harold McComb & Son Inc. of Fort Wayne, Ind. "Furthermore, granting former employees' designated representatives access to the OSHA logs is like granting a license to individuals and organizations who seek to exploit and harass merit shop companies," he said.