BREAKING: OSHA Announces Delay of Recordkeeping Rule

Probably hoping no one would notice, OSHA today subtly buried  an “Update” deep in its website, announcing that it intends to propose a delay in requirements of its new recordkeeping standard.

The target of this latest rollback is a rule issued last year to “Improve Tracking of Workplace Injuries and Illnesses” which simply requires employers already covered by OSHA’s recordkeeping requirements to send some of that information in to OSHA.  OSHA had planned to publicize the information on its website.  The rule also prohibits employers from retaliating against workers for reporting injuries or illnesses.

Although the deadline for submission is July 1, in order to ensure that the submission process was as easy and error-free for businesses as possible, OSHA had announced that it would put the forms up on the agency’s website last February, several months before the deadline.The website was, in fact, ready to be posted by the end of February, but had not appeared, setting observers to wonder what was happening as the July 1 deadline approaches.

According to former OSHA Assistant Secretary David Michaels, “This action demonstrates that the Trump Administration continues to put corporate interests over worker safety, and shows they have no commitment to following the rule of law.”

DOL’s action follows a petition filed earlier this month by several industry associations, requesting that DOL stay the rule and re-open rulemaking because it “exceeds OSHA’s statutory authority” and “will have an adverse impact one workplace safety and health.” According to the petitioners, the rule would allegedly reveal confidential information and prohibit employers from conducting post incident drug testing and establishing incentive programs. The petitioners were the Chamber of Commerce, the National Association of Home Builders, the National Chicken Council and several others. The Department’s action follows a delay in enforcement of the silica standard and re-opening of the beryllium standard.

“This action demonstrates that the Trump Administration continues to put corporate interests over worker safety, and shows they have no commitment to following the rule of law.” — David Michaels

As usual, the industry petition is wrong.  OSHA assured the workers and businesses that no confidential information about workers would not be collected or posted. Employers would only be cited for incentive programs, drug testing and other practices when there was clear evidence that these programs were being used with the intention of discouraging workers from reporting injuries and illnesses.

The industry’s horror at collecting and posting this information is even more suspect considering that the information OSHA was  requiring employers to report on July 1st is the same summary information that employers had been submitting to OSHA under the OSHA Data Initiative annually from 1995 until 2012 — under both Democratic and Republican administrations. Yet somehow, through all those years, the Republic survived, businesses continued to do business and no worker was harmed by the data’s publication

The bottom line is that this information is important to improve worker safety and health. First, OSHA would publicize this information so that workers would know which employers are more dangerous, and good employers can compare their safety and health records with other businesses in their industry. OSHA would also use this information to better focus its inspections. It’s a waste of taxpayer money — and a waste of time for good employers — for OSHA to spend time inspecting workplaces that have no health and safety problems. Better that the agency should go to the more dangerous workplace, and the only way OSHA knows where to go — at least before someone gets hurt — is to look at business’s injury and illness numbers.

The information OSHA was requiring employers to report on July 1st is the same summary information that employers had been submitting to OSHA from 1995 until 2012.

The OSHA regulation would also prohibit employers from retaliating against employees who report injuries or illnesses.  If employees are intimidated from reporting because they might be punished, the accuracy of the data is harmed.

But aside from the legal arguments, there may be another, more important problem with the rule, as  the Chamber of Commerce revealed in a recent submission to the Trump administration: “Furthermore,” the Chamber wrote, “posting safety records online will provide unions and trial attorneys with information that can be taken out of context and used in organizing campaigns, or form the basis of lawsuits.”

Particularly irritating is the petition’s complaint that the rule should be delayed because OSHA has not put the online portal for submission of data on its website, despite the fact that it was promised by February.   Given that it was Trump’s OSHA that refused to put the completed website up, this is an argument somewhat reminiscent of the kid who just murdered his parents asking the judge for mercy because he’s an orphan.

Also amusing is the petition’s statement that OSHA lacks statutory authority to “create an online database meant for public dissemination of employers’ injury and illness records.”  Of course, they’re totally correct that nowhere in the 1970 Occupational Safety and Health Act is an “online database” mentioned. (Bill Gates was only 15 years old in 1970 and the internet existed only in far-fetched science fiction novels.) The Act does, however, direct OSHA to “prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses…,” which just about covers it, assuming that the Constitution will survive a “report” being posted on the web.

In conclusion, what we’re seeing, as David Michaels said above, is an Administration that has no interest in worker safety and health; it is entirely oriented to the corporate interests, and, in Steve Bannon’s words, “deconstruction of the administrative state.”  One of the most effective tools in weakening workers’ power is to limit the amount of information available to the public, a theme we’ve seen throughout the administration as described in an article in yesterday’s Washington Post.

President Trump and Secretary of Labor Acosta are asking you what they can do to make OSHA more effective. I’ve already suggested a number of items. Add this to the list. Talk to your friends and co-workers. This is not a pro-worker administration, and workers will pay the price for rolling back these hard-earned protections — in injury, illness and death.

 

Deconstructing the Administrative State Recordkeeping Regulations and Standards

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