OSHA proposes making workplace incident records public

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December 5, 2013

OSHA proposes making workplace incident records public 

Alyssa E. Lambert

The Occupational Safety and Health Administration has proposed a rule that will create the first publicly available database of detailed workplace safety information. It would require employers to submit injury and illness reports electronically.

In an effort to provide greater transparency about workplace injuries and promote employee safety, the Occupational Safety and Health Administration (OSHA) has proposed a rule that will create the first publicly available database of detailed workplace safety information. While companies are required to maintain records about workplace injuries and illnesses, the new rule would require employers to submit injury and illness reports electronically to OSHA annually and, in some cases, quarterly. Business groups strongly oppose the rule, but plaintiff attorneys and safety advocates argue it will help the agency identify the most accident-prone industries and sites to improve safety.

Every year, workplace injury rates from about 60,000 companies are collected and stored on OSHA’s website. But that information contains only raw numbers about incidents at certain workplaces; it does not describe the injury or how it occurred. And companies generally must maintain internal records concerning workplace incidents and illnesses but forward the information to OSHA only if it is requested.

Under the proposed rule, companies with more than 250 employees (about 38,000 in the United States) would have to electronically submit workplace injury and illness records to OSHA quarterly, and that information would be made public. Employers with 20 or more employees in certain industries with high injury and illness rates (another 440,000 companies) would have to submit a summary of this information annually. OSHA would redact any personal identifiable information before posting the data on its website.

Plaintiff attorneys who represent injured workers have praised the proposed rule. “The rule can only do good things for worker safety on a site. There is a requirement for periodic reporting, but there is no specific requirement that those be forwarded to OSHA or an OSHA representative,” said Philadelphia lawyer Brian Kent. He added that the database will allow OSHA to zero in on the most dangerous industries, and the agency “can pass regulations or do more job site inspections so that there is a reduction of injuries in that field.”

Being able to focus on targeted areas will help OSHA work within the confines of its resources: It has only 2,400 inspectors for nearly 8 million workplaces nationwide, and it would take almost 100 years to inspect every site once, according to OSHA’s director, David Michaels.

Business groups, such as the U.S. Chamber of Commerce, have argued that details about workplace accidents and illnesses will be misleading, unfairly target certain companies, and cause employers to underreport the data to avoid a bad reputation.

Philadelphia attorney David Kwass said the push-back against the rule is misplaced. “To suggest this is opening the floodgates is ridiculous. What industry is concerned about is a slippery slope, and it’s not this step, but it is concerned about what will happen in one or two more steps,” said Kwass. He added that companies are already required to collect the data and because all 50 states have tort immunity laws that prevent employees from directly suing employers who provide workers’ compensation benefits, the regulation does not unfairly target employers. “The other side of this is, what imaginable right can there be to hide employee accidents and injuries? They have no constitutional right to the confidentiality of that information. . . . This [data] is going to be used in third-party litigation, not first-party litigation,” he said.

Kent and Kwass said the rule’s effects will reverberate in the courtroom.

“Oftentimes in these workplace accident cases, you are looking for prior notice to an employer, so if there is a prior injury involving the same employer, it is going to be tough for the employer to say ‘look, this was just an accident,’” said Kent. “If there are other accidents that are similar to yours, then you have a much better chance of alleging and being able to prove punitive damages under the reckless disregard for safety standard.”

Kent noted the rule’s potential impact on discovery. “Now you have something that is public record that you can use as a guide for streamlining the discovery process for document requests,” he said. “If this depository is detailed, then those people who were in similar accidents may be people you want to depose.”

Kwass also emphasized that the rule will help prove the plaintiff’s case to the jury. “The more robust workplace statistics that we get, the more sense we get as plaintiff lawyers, and we are better able to screen cases,” he said. “Then, when we take cases and present them to defense adjusters, judges, and juries, we can show that it’s not just my client who this happened to.”

OSHA will hold a public hearing on the proposed rule in Washington, D.C., on Jan. 9, and the public comment period ends on Feb. 6.

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