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Employers wary of OSHA's pursuit of electronic injury reporting rule

Employers wary of OSHA's pursuit of electronic injury reporting rule

The U.S. Occupational Safety and Health Administration is sticking to its guns by moving forward with a new regulatory rule that would expand electronic recordkeeping requirements for workplace injuries and illnesses and make such records publicly available, despite consistent objections from employers and their advocates.

On Oct. 5, the agency submitted a final draft rule to improve tracking of workplace injuries and illnesses to a division of the White House's Office of Management and Budget, which reviews draft and final standards and regulations.

“That's got employers all riled up,” said Lisa Neuberger, editor and workplace safety expert with consulting and training firm J.J. Keller & Associates Inc. in Neenah, Wisconsin. “We're not sure if (the rule is) going to happen or not, but OSHA seems pretty serious about it.”

In November 2013, OSHA proposed amending its regulations for recording and reporting occupational injuries or illnesses to add new electronic reporting requirements, with the stated intention of making this information public.

“I'm skeptical about the reasoning behind OSHA implementing this rule,” said Eric Conn, Washington-based chair of the OSHA/workplace safety practice group of Conn Maciel Carey P.L.L.C. “The whole point of it is to embarrass employers. I think it's inappropriate because the recordkeeping rule was always intended to be a no-fault rule.”

Employers with 250 or more employees, including full-time, part-time, temporary and seasonal workers, would be required to submit this information on a quarterly basis, which OSHA has described as a relatively small burden compared with employee safety and health benefits, according to the notice of proposed rulemaking. Employers with 20 or more employees in certain designated industries will be required to electronically submit these records on an annual basis.

“The agency has underestimated the burden this would put on employers,” said Valerie Butera, a Washington-based member of the firm in the labor and employment practice of Epstein Becker Green P.C.

OSHA does not expect the proposed rule to lead to an increase in enforcement actions, but declined to comment on its contents until publication in the Federal Register.

Although OSHA has previously stated that private information will be scrubbed from these reports before they are publicly available, the agency has not indicated how it plans to ensure these reports do not include any information that could identify the employee, Ms. Butera said. For example, even if the employee's name is redacted, information about the date and type of injury as well as location could be used to identify the employee.

“The agency is horribly short-staffed and underfunded,” she said. “There's this threat of your employee's privacy being breached. Businesses have to take more responsibility than OSHA is saying.”

Technically, the White House has 90 days, with a possible 30-day extension, to review the rule, but the process for reviewing complicated OSHA regulations generally takes longer, meaning there is no set timeframe for review, let alone for possible implementation, Ms. Butera said.

Approval is not a given, and OSHA experts have mixed views on whether the rule will actually come to fruition.

“You're more likely to see the rule killed itself rather than any changes to the rule,” Mr. Conn said. “If there is a perceived or real significant impact on businesses or the economy without improvement to safety and health, the rule would not make its way through the OMB process.”

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