Despite industry backlash, the first phase of the Occupational Safety and Health Administration’s hotly contested new injury reporting regulations went into effect this week — just days after a coalition of manufacturing groups attempted, and failed, to derail it.
The new rule will add a major twist to how companies report injuries or illnesses. Instead of filling out OSHA 300 logs and keeping those reports on-site, they will now have to be turned over to OSHA. More controversially — the reports will be published on OSHA’s website for public viewing.
A Quick Background
The rule was finalized in May 2016, and was met with “a bit of mass hysteria,” according to Scott Harris, a safety expert who argued that it would motivate companies to provide better safety provisions to protect their employees.
But others have been less convinced. In July, eight industry groups including the National Association of Manufacturers, the Association of Builders and Contractors filed a lawsuit attempting to block implementation of the rule. Just days ago, a federal court judge in Texas denied the motion for a preliminary injunction and concluded that their arguments were “based almost entirely on unsupported beliefs, unfounded fear and speculation.”
One of the issues at the heart of the industry groups’ complaints was a part of the rule that enhances anti-retaliation provisions. Under OSHA’s new regulations, employers are no longer supposed to automatically drug test employees who have been involved in an accident. The industry groups argued that mandatory drug screening reduces accidents, but OSHA determined that they should instead limit testing to instances where there is warranted suspicion of drug use.
Because of the court ruling, the anti-retaliation aspects of the law went into effect Dec. 1.
On Jan. 1, 2017, the injury recording requirements will start and reporting is set to begin in July.
The Common Misconceptions
For many safety advocates, the OSHA rule is a welcome change. But misconceptions remain about what it could mean for employers. Recently, Mina Mina, a senior director of client success at Avetta, a supply chain auditing firm, detailed those misconceptions in a blog post about the rule.
Among the concerns Mina addresses are:
Visibility To The Public — According to Mina, OSHA has about 2,000 inspectors, who can only inspect about 90,000 establishments every year (out of 8 million employers). Because OSHA can’t inspect everyone, publically publishing these injury reports are a way for OSHA to see which facilities might need an inspection — which they hope will ultimately help prevent accidents.
Privacy — The reports that are visible to the public will not include personally identifiable information about the employee involved — so their privacy will be protected.
Lawyers Trolling For Lawsuit Opportunities — Although Mina didn’t cover this issue in his blog post, when asked in a recent interview if these injury reports could inspire tort lawyers to look for litigation opportunities, he countered that they already can since fatality reports are publically available.
“I could see how some would feel like that,” Mina said. “But this rule is not any more stringent than what’s already happening.”
Bad Publicity — There’s no denying that the new visibility will shine a hot light on employers who’ve had multiple on-site injuries. But rather than shaming those businesses, Mina sees it as an opportunity for contractors to be informed about whom they’re working with and to consult with those companies to help them improve their safety protocols.
He argues it’s no different than the health safety ratings for restaurants that are made public so that consumers feel like they can make more informed decisions.
“By having greater transparency amongst businesses, the playing field is leveled and healthy competition will increase,” he writes.
But Questions Remain…
According to Mina, there could still be enforcement issues with the new rules.
“What is OSHA going to do if people don’t comply? How are they going to know?” Mina asks. “They already don’t have enough investigators and this is contributing more of an administration burden.”
Although the rule is being phased in slowly, Mina says many may not be aware of the changes.
Some have also pointed out that the court’s recent decision did not determine whether the regulation will be upheld in the long run — or if President-elect Donald Trump’s incoming administration will support OSHA’s efforts.
What do you think of OSHA’s rule moving forward in the courts? Let us know your thoughts by commenting below.