{"id":4580,"date":"2019-01-25T08:33:13","date_gmt":"2019-01-25T13:33:13","guid":{"rendered":"http:\/\/jordanbarab.com\/confinedspace\/?p=4580"},"modified":"2019-01-28T15:11:49","modified_gmt":"2019-01-28T20:11:49","slug":"osha-sorry-recordkeeping-evidence","status":"publish","type":"post","link":"https:\/\/jordanbarab.com\/confinedspace\/2019\/01\/25\/osha-sorry-recordkeeping-evidence\/","title":{"rendered":"OSHA’s Sorry Justification for Repealing Recordkeeping Requirements"},"content":{"rendered":"

Neither government shutdowns, requests for meetings by stakeholders, nor lack of evidence can stop an agency like OSHA from rolling back a regulation that would have increased our understanding of workplace injuries and illnesses, and made work safer for millions of American workers. As Robert Weissman of Public Citizen observed, “Although shut down, the Office of Information and Regulatory Affairs is apparently still open for business \u2013 that is,\u00a0for<\/em><\/span>\u00a0business:<\/p>\n

Last week, the White House Office of Management and Budget cleared<\/a> OSHA’s rollback of significant parts of the Obama administration’s electronic recordkeeping regulation and today the text of that regulation was released. The rollback, nothing less than a cover-up of worker injury and illness data at the behest of the Chamber of Commerce and friends, was rushed through OSHA and OMB review in record time. The rush is apparent from reading the regulation — numerous paragraphs and argument are repeated, evidence is incorrectly cited, evidence is lacking and the arguments are laughable.<\/p>\n

Furthermore, because of the rush or the government shutdown, the AFL-CIO’s request for a meeting with the Office of Information and Regulatory Affairs was ignored — an unprecedented action that resulted in the labor federation’s request<\/a> to recall the regulation until a meeting takes place.<\/p>\n

Furthermore, the Federal Register is scheduled to officially publish the regulation this morning, despite the Register’s government shutdown guidance document<\/a> that states that<\/p>\n

Under DOJ guidance received January 11, 2019, we are also allowed to publish\u00a0documents from funded agencies\u00a0if delaying publication until the end of the appropriations lapse would prevent or significantly damage the execution of funded functions at the agency.\u00a0 Agencies must submit a letter certifying that delaying publication of their documents would result in this situation.\u00a0This certification provides OFR with documentation that publication in the\u00a0Federal Register\u00a0is a function or service excepted under the Antideficiency Act.<\/p>\n

What “significant damage” will OSHA suffer if recordkeeping requirements aren’t rolled back today?<\/p>\n

Background<\/h2>\n

In order to fulfill the purpose of the Act, OSHA is authorized to require employers to record injury and illness information, as well as collect information on safety and health from employers, including injury and illness information.\u00a0Consequently, OSHA has long required certain employers to keep injury and illness logs; specifically,\u00a0OSHA Forms 300, 300A, and 301<\/a>.\u00a0OSHA Form 300<\/strong>\u00a0is a log of all injuries and illnesses, including names of worker injured or sickened. The\u00a0300A Form<\/strong>\u00a0is a summary of that form that contains no names or confidential information. Employers are required to post that information in the workplace between February 1 and April 30 of every year. The\u00a0301 Form<\/strong>\u00a0is a detailed description of workplace injuries that includes information about what happened and what the employee was doing just before the incident occurred.<\/p>\n

On May 12, 2016, OSHA\u00a0amended its recordkeeping regulation<\/a>\u00a0to require employers to annually submit to OSHA, by electronic means, injury and illness information that employers were already required to keep. Establishments with 250 or more employees in industries that are routinely required to keep records are required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA\u2019s designee once a year. Small businesses with 20 to 249 employees in certain designated industries are only required to submit information on the summary form 300A. Employers were already required to collect this information. The only change was that they were now required to send it into OSHA through a web-based electronic system that OSHA would develop.<\/p>\n

Until the new regulation was issued, OSHA did not \u2014 with one exception \u2014 require any of that information to be sent in to OSHA. The main purpose of requiring employers to collect the information was to help them improve their health and safety programs, and OSHA Inspectors consulted the information when conducting inspections.\u00a0 The one exception was OSHA\u2019s collection of injury and illness summary information from around 80,000 employers every year, a program that lasted from 2006 to 2013 and was used to better target OSHA inspections in the most dangerous workplaces.<\/p>\n

The 2016 rule had two phases. The first phase was submission of the Form 300A summary data which, after several delays, took effect last year. The second part, sending in information from the 300 Form and the more detailed 301 data, was supposed to take effect this year. Submission of the 300 Log and the detailed Form 301 data are the requirements that OSHA is canceling.<\/p>\n

Why Was The Regulation Rolled Back?<\/h2>\n

OSHA’s argument<\/a> for rescinding these requirements rests almost solely on a false argument that OSHA’s collection of information would put confidential information at risk of exposure:\u00a0 “OSHA has determined that collecting the data from Forms 300 and 301, as was recently required under the 2016 final rule, would subject sensitive worker information to a meaningful risk of public disclosure.”<\/p>\n

I explained<\/a> last August, after OSHA issued its proposal, why this confidentiality argument is false: In 2016, when the original regulation was issued, OSHA assured the public that all confidential information would be protected. This would include the information on the left side of the 301 Form, specifically workers\u2019 names, birthdates, names of their doctors, etc.\u00a0 OSHA assured that confidential information couldn’t be accidentally released through a mistake or a data breach, or even by way of a rogue court decision by ensure that employers don’t send confidential information in to OSHA in the first place.<\/p>\n

None of the fields on the electronic portal that employers would use to send the data to OSHA would contain fields for confidential information.\u00a0 Where that couldn’t be avoided with important information like birth dates, the program would automatically convert “birth date” to “age.”<\/p>\n

In short, if OSHA is not in possession of confidential information, there’s no way it can be released.<\/p>\n

But Trump’s OSHA\u00a0“no longer views such protections as sufficient.”<\/p>\n

In order to undermine the facts, OSHA basically had to twist itself into a pretzel to figure out obscure and far-fetched ways that confidential information could hypothetically still be released. For example:<\/p>\n