Will OSHA's Misguided Ideology on Injury and Illness Recordkeeping Lead to More Video Cameras in the Workplace?

At every opportunity during the Obama Administration, OSHA has alleged that there is widespread and substantial under-reporting of work-related injuries and illnesses that OSHA must address through additional regulatory and enforcement measures. OSHA has taken this position despite the overwhelming weight of evidence to the contrary. When one reviews the results of OSHA’s National Emphasis Program on Injury and Illness Recordkeeping, the findings from approximately 40,000 inspections per year, and the annual contractor audits of employer compliance with OSHA’s injury and illness recordkeeping rule, there are simply no data to support OSHA’s allegation.

There may be an extremely small group of employers that are recalcitrant and will not change their practices in response to any rule that OSHA might adopt.  So what should the agency do to address this small group? The obvious answer is to make more effective use of the agency’s Severe Violators Enforcement Program. Regrettably, it appears that OSHA nevertheless believes the answer is to suggest there is a broader problem than is supported by the data and adopt universally applicable, overreaching rules designed to target the phantom “problem” as well as the irresponsible practices of the recalcitrant few. Based on that approach, OSHA has re-opened the record in the rulemaking titled “Improve Tracking of Workplace Injuries and Illnesses,” 79 Fed. Reg. 47605-47610 (August 14, 2014) to invite the submission of comments supportive of this approach that we expect will be based on bias, ideology, and anecdotes lacking any statistically significant foundation.

As justification for reopening the rule, OSHA’s August 14 Federal Register notice states: 

At a public meeting on the proposal, many stakeholders expressed concern that the proposal could motivate employers to under-record their employees’ injuries and illnesses. 

We question whether OSHA has accurately represented the views expressed at the public meeting, recognizing that oral statements at an informal public meeting are sometimes presented with less precision than written statements. While the argument may have been a double-edged sword, we believe employer interests indicated that, if the public shaming aspect of the proposed rule was adopted, cases would be more heavily scrutinized to determine whether they are recordable and, where the answer is unclear, as is often the case, some employers would be more likely to decide not to record the case.  In other words, when well-intentioned employers made good faith comments regarding the lack of clarity in the existing recordkeeping regulation, OSHA rewarded them with heightened suspicion.

OSHA’s August 14 OSHA Federal Register notice proceeds to state: 

[Stakeholders, meaning representatives of organized labor] expressed concern that the proposal could promote an increase in workplace policies and procedures that deter or discourage employees from reporting work-related injuries and illnesses. These include adopting unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses. In order to protect the integrity of the injury and illness data, OSHA is considering adding provisions that will make it a violation for an employer to discourage employee reporting in these ways.

In other words, OSHA notes a hypothetical concern that the proposed electronic reporting rule could promote an increase in workplace policies and procedures that deter or discourage employees from reporting work-related injuries and illnesses. OSHA fails to give any guidance as to what practices might fall into that category and, in effect, appears to have acknowledged that there is no support for this concern and that it has embarked on a fishing expedition soliciting “creative” stakeholder input.

OSHA also notes a concern that employers may retaliate against an employee that reports a work-related injury or illness, and suggests that disciplinary action taken for violation of a safety rule may be simply a pretext. Does OSHA realize that in today’s current lean environment, employers do not have supervisory personnel hovering over employees and on the lookout for safety violations? As a practical matter, violations are far more likely to be discovered when they lead to an injury or illness that must be reported. Where the injury or illness was due to a knowing safety violation, the employer is, in effect, required to take disciplinary action. Otherwise, the employer will be unable to sustain a defense to a citation based on lack of knowledge or the employee misconduct defense. Is OSHA suggesting that employers need to engage in widespread video surveillance of employees so that safety violations that do not result in injury or illness will be detected? 

OSHA tries to make much ado about the fact that employees have a “right” to report work-related injuries and illnesses, and therefore need to have that right protected by OSHA. The recordkeeping rule does not confer a “right” upon the employee to report an injury or illness; rather, it confers a duty upon the employee to report the incident to the employer in a timely and accurate manner under often-ignored Section 5(b) of the OSH Act[1], a duty upon the employer to record that incident in a timely and accurate manner pursuant to Section 8(c) of the OSH Act, and a right upon the employer to require employee cooperation.  Furthermore, the OSH Act already provides protection against retaliation in a process that has been replicated by several other agencies. We respectfully suggest that OSHA should refrain from efforts to rewrite the OSH Act through the attempted creation of new “rights.”

We urge employers to file comments with OSHA explaining why the additional provisions being contemplated by OSHA are not necessary, would inevitably overreach, and would be counterproductive. If you would like to discuss this issue, please contact: Larry Halprin at 202-434-4177 or halprin@khlaw.com; Manesh Rath at 201-434-4182 or rath@khlaw.com; or David Sarvadi at 202 434-4249 or sarvadi@ khlaw.com.