New Rule Will Make Information About On-the-Job Injuries at Dangerous Workplaces Public

More than 3 million US workers suffer a workplace injury or illness every year, according to the Bureau of Labor Statistics — numbers that are thought to be significantly underreported. But astonishingly, little or no information about at which workplaces these occur is made available to the Occupational Safety and Health Administration (OSHA), the agency responsible for enforcing US workplace safety. Neither is this information made public.

But under a new rule OSHA has just announced, employers in “high-hazard” industries will have to send this information directly to OSHA for posting on the agencies website. The rule also includes provisions to protect workers who report job-related injuries and illnesses from employer retaliation.

“Most people don’t realize that many employers don’t send this information to OSHA,” explained David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, on a call with reporters. “Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses,” said Michaels. “High injury rates are a sign of poor management.”

The new rule will also “help workers choose safer workplaces,” Michaels explained. “If you are looking for a new job, would you want to work at an establishment where you have a high likelihood of being injured?”

“More attention to safety will save life and limbs,” he added.

The rule, which has been several years in the making, was greeted with enthusiasm by labor advocates. “The new OSHA recordkeeping rule,” said National Council for Occupational Safety and Health (National COSH) acting executive Director Jessica Martinez in a statement, “is an important step towards transparency. By requiring electronic submissions every quarter and making the data public, this common-sense regulation will help us learn more about how workers are hurt and become sick on the job.”

In his statement, AFL-CIO president Richard Trumka said, “We are pleased that the new rules also include important protections to ensure that workers can report injuries without fear of retaliation. For far too long, in an effort to keep reported injury rates low, employers have retaliated against workers for reporting injuries, disciplining them for every injury or creating barriers to reporting.”

The US Chamber of Commerce, however, called the rule “misguided,” saying “the agency’s excessive reporting requirements will lead to employers being falsely branded as unsafe and will not reflect a company’s commitment to maintaining a safe workplace.” The new requirements, said the National Association of Manufacturers, “could lead to public shaming.” Both business groups said the rule would create burdens for employers and expressed concern that it would lead to the release of proprietary information.

What Does the Rule Require?

In fact the new rule does not require employers to collect additional information. Rather, it requires employers — only in what OSHA considers the most dangerous industries — to send OSHA information they’re already required to collect. These industries include agriculture, construction, forestry, hospitals, manufacturing that includes oil, gas and chemical plants as well as and food processing, and trucking.

“It does not add to or change employers’ obligations,” said Michaels.

As for the concern about the release of confidential data, Michaels explained that “before OSHA posts any information, it will remove any personal information.”

The rule, which becomes effective on August 10, will be phased in over the next two years with its first reporting due to OSHA in July 2017. Reporting requirements vary slightly depending on workplace size, but the rule will apply to all employers, except for those with less than twenty employees.

Having workplace injury and illness information reported directly to OSHA will help the agency “improve safety without additional inspections,” said Michaels. This data will help OSHA better “target” its limited enforcement resources, he explained.

Currently, OSHA has about 2,200 inspectors — some of these through state agencies — that are responsible for some 130 million workers at more than 8 million workplaces across the country. That means that there’s about one OSHA inspector for every 60,000 workers. The information OSHA gets about workplace injuries and illnesses under the new rule will help point OSHA toward where workers are most at risk.

For example, “We looked at the variation in injury rates in the same industry [but] in different establishments in the same city and found huge variations,” Michaels explained on a call with In These Times. In one North Carolina city, OSHA found that workers at one nursing home had a 1 in 45 chance of injury but a 1 in 9 chance of being injured at another, he explained. “We’re really trying to stress that workers have a right to know this. We think publication of this record will make employers work hard to improve,” said Michaels.

Protection Against Retaliation

While workers already have the right to report job-related injuries and illnesses, they are often discouraged from doing so — particularly at workplaces without union or other such representation. Under the new rule, retaliating against a worker for reporting a workplace injury or illness would be a violation of OSHA’s recordkeeping requirements, eliminating some potential complications for workers and for OSHA in responding to retaliation.

“We have workers who reported an injury and then were fired. This happens a lot,” explained Massachusetts Coalition for Safety and Health (MassCOSH) executive director Marcy Goldstein-Gelb. There’s also the issue of workers who fear for their immigration status if they take full advantage of their rights and speak out about injuries, she added.

Retaliation can also take the form of blaming the worker for the injury, United Steelworkers director of health, safety and environment Mike Wright explained. Michaels explained there were cases where injured workers were cited for “lack of situational awareness.”

Goldstein-Gelb and Wright both said the new rule would enable OSHA to take more protective action with fewer reporting complications for workers. Previously, retaliation cases could “only be handled as retaliation” cases, said Wright. “Now we can challenge this directly,” as a reporting violation, he said. In theory, the new rule should also make it easier for workers without union representation to report retaliation.

Retaliation against injury reporting “is widespread in the poultry industry,” says Oliver Gottfried, Oxfam America senior advocacy and collaborations advisor in a statement. “Poultry companies,” he explains, “use a variety of measures to deliberately avoid reporting injuries on their logs.” He welcomes the new rule but says it alone won’t “address the problem of widespread underreporting of injuries.”

Discouraging Programs That Discourage Reporting

While the new rule doesn’t address such programs directly, OSHA says it should also help discourage are programs many employers have had that actively reward workers for not reporting job-related injuries and illnesses. According to examples provided by OSHA, these have included programs that put extra money in workers paychecks or given them gift cards and t-shirts for going certain number of days without reported injuries. One such program included drawings for flat-screen TVs. Another was described as “safety bingo” with monetary prizes.

Such programs have also been designed so that workers discourage each other from reporting injuries as the whole workplace loses out on rewards for injuries reported. Wright tells a story of a workplace where a worker was intimidated by co-workers who didn’t want to lose out on one of these programs so did not report slipping, falling and breaking his arm — only to have another co-worker later slip in the same place and suffer a head injury.

Eliminating fear of reporting and enabling OSHA to enforce non-reporting under this new rule could undercut such programs.

“The value of having this information is just enormous. Companies hate to have that dirty laundry aired,” says Wright. He explains that simply requiring companies to report adverse outcomes — as the US Environmental Protection Agency did with polluters in the 1980s — has a big impact. “Just the fact that companies can’t hide this stuff,” could make an important different, he says. And Wright adds, as Supreme Court Justice Louis Brandeis said, “Sunshine is the best disinfectant.”