OSHA proposes quarterly electronic reporting with more transparency

OSHA proposes quarterly electronic reporting with more transparency

Individual employer data would be online

In a major move toward greater transparency in injury and illness reporting, the U.S. Occupational Safety and Health Administration has proposed a rule that would require large employers to send their information to the agency electronically every quarter.

The regular public reporting will encourage employers to find and fix hazards, said OSHA administrator David Michaels, MD, MPH. OSHA also will use the information to identify employers with higher injury rates, he said in a telephone press conference.

"For the most part, the information in the [OSHA] logs never leaves the workplace," he says. "We propose to change that so these logs can play a greater role in preventing injuries and illnesses."

Some employer groups reacted with skepticism or opposition to the plan to collect information quarterly and make it available in a searchable database. Recordkeeping would transform from an internal mechanism to identify hazards to an external publication of safety performance, says Brad Hammock, leader of the Workplace Safety and Health practice group at Jackson Lewis law firm in Washington, DC.

"You want to drive injury reporting as much as possible [to identify hazards]," says Hammock. With such a rule, "are you setting up a system where you’re actually dis-incentivizing reporting, which makes it more difficult for you as an employer to know where all your injuries are occurring?"

For safety professionals, a more accurate and timely database of injury and illness data provides more opportunities for comparison. "Once implemented, this initiative will enable employers to compare their safety records to those at similar facilities," Stephen Burt, president of Health Care Compliance Resources, an affiliate of Woods Rogers Consulting in Roanoke, VA, says in a white paper released after the proposed rule. "In addition, prospective employees will know which employers have better safety records, helping those employers compete for the most desirable workers.

Identifying top safety performers?

Currently, the U.S. Bureau of Labor Statistics surveys about 80,000 employers each year to gather information on occupational injuries and illnesses. There is a lag of about a year before data for a calendar year is released. The Bureau of Labor Statistics will continue conducting surveys, Michaels said.OSHA will use the reported data to target enforcement, but also to shape compliance and outreach programs, Michaels said. And just the public reporting itself will shape behavior, he said.

"Employers want to be seen as the top performers in their industry," he said. "We believe responsible employers want to be recognized as leaders in safety."

OSHA said it does not expect the proposed rule to be a burden for large employers defined as those with 250 or more employees because most of those employers already collect the OSHA 300 log information electronically. Smaller employers (with 20 or more employees) in designated industries would be required to submit information from the summary form (OSHA 300A) annually. Hospitals, nursing homes and home health care are among the designated industries.

OSHA is seeking comment on whether and how to phase in the shift to electronic reporting, how reporting should occur for employers with multiple establishments or facilities, and what impact the change may have. (See editor’s note below.)

Federal agencies are the test case

While OSHA’s proposal would radically change the way employers report injuries and illnesses, it isn’t completely unexpected. The agency had included the item on its regulatory agenda and had already taken steps toward reworking the nation’s injury and illness recordkeeping.

As of January 1, 2014, OSHA is requiring all federal employers (including hospitals) to submit their injury and illness data to the U.S. Bureau of Labor Statistics every year. Some saw this as a first step toward broader reporting requirements from all employers.

"Everybody’s reading between the lines. It’s almost like a test program [for federal agencies]," Burt said of the new federal requirement.

OSHA could eventually move toward real-time injury and illness reporting, perhaps starting with high-hazard industries, says Brad Harbaugh, editor of the EH&S blog for MSDSonline, a safety compliance consulting firm. "OSHA is going to use that [recordkeeping information] to target their inspections," he says. "If they have more information about specific companies and industries [that have the greatest problems], those industries should expect to see more regulatory activity."

Flaws in recordkeeping have always been a prominent OSHA concern. In fact, Michaels highlighted the problem of underreporting even before he became assistant secretary for labor. He implemented a National Emphasis Program on recordkeeping from September 2010 to February 2012, including nursing homes among other high-hazard workplaces that were targeted for more intense scrutiny.

"When worker injuries and illnesses are underreported, it only serves to conceal hazards that, unabated, continue to endanger workers’ health and safety," Michaels said in a 2012 speech.

Recordkeeping in the spotlight

Recordkeeping has long been in OSHA’s sights. Failing to properly maintain OSHA 300 logs is one of the most frequently cited violations for hospitals. Employers can err by failing to place certain incidents on the log. They are required to record work-related injuries or illnesses within seven days of learning about the incident. Any medical treatment beyond first aid makes an incident recordable and OSHA’s list of first aid treatments is all-inclusive.

Other concerns include:

Protecting whistleblowers: In March 2012, OSHA reminded inspectors that it is unlawful for employers to discipline workers who have been injured or who report an injury. OSHA also cautions against incentives that reward employees for not reporting injuries. (www.osha.gov/as/opa/whistleblowermemo.html ) "They’re looking very closely at those programs to see if they create a chilling [effect on] injury reporting," says Burt.

Need for immediate reporting: A final rule is pending for new OSHA recordkeeping requirements. Under the proposed rule, employers would be required to report all hospitalizations due to work-related injuries or illnesses within eight hours and all work-related amputations within 24 hours. OSHA currently only requires reporting of hospitalizations of three or more workers in the same incident and doesn’t have a specific reporting rule for amputations.

The reporting rule is geared toward trauma and does not apply to hospitalizations from surgery related to previous injuries, says Hammock.

Statute of limitations: Last year, the U.S. Court of Appeals in the District of Columbia ruled that OSHA can only cite for recordkeeping violations that occurred in the past six months. OSHA contended that recordkeeping violations were ongoing, or continuous, and because the Occupational Safety and Health Act requires employers to maintain their injury records for at least five years, that was the functional statute of limitations for recordkeeping deficiencies. "That was a very significant, pro-employer decision," says Hammock.

In its 2013 regulatory agenda, OSHA indicated that it will issue a rule "to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.

"The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred," OSHA said. "The duty does not expire if the employer fails to create the necessary records when first required to do so."

[Editor’s Note: The comment period on the OSHA proposed rule "Improve Tracking of Workplace Injuries and Illnesses" is open through Feb. 6, 2014. For a copy of the proposed rule and instructions on how to submit comments go to: http://1.usa.gov/1agpyyx.]

First-aid only need not be reported

The U.S. Occupational Safety and Health Administration offers this list of treatments that are considered first aid. OSHA considers this a "complete list," so that any other treatments would be recordable.

-Using a non-prescription medication at nonprescription strength (for medications available in both prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes)

-Administering tetanus immunizations (other immunizations, such as Hepatitis B vaccine or rabies vaccine, are considered medical treatment)

-Cleaning, flushing or soaking wounds on the surface of the skin

-Using wound coverings such as bandages, Band-Aids, gauze pads, etc., or using butterfly bandages or Steri-Strips. (Other wound closing devices such as sutures, staples, etc., are considered medical treatment)

-Using hot or cold therapy

-Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (Devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes).

-Using temporary immobilization devices while transporting an accident victim (such as splints, slings, neck collars, back boards, etc.).

-Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister

-Using eye patches

-Removing foreign bodies from the eye using only irrigation or a cotton swab

-Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means

-Using finger guards

-Using massages (Physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes)

-Drinking fluids for relief of heat stress