OSHA's proposed rule-making raises questions about business privacy and security.
THE National Grain & Feed Assn. (NGFA) has expressed concerns that an Occupational Safety & Health Administration (OSHA) notice of proposed rule-making "does little to achieve its stated goal of reducing injuries, illnesses and fatalities."
In a recently submitted statement, NGFA asked OSHA to withdraw its proposed rule to track workplace injuries and illnesses, explaining that "the current injury and illness reporting requirements have worked well and proven themselves as balanced and useful in protecting lives and reducing injury levels."
The proposed rule would require employers to electronically submit to OSHA injury and illness information currently contained in forms 300A, 300 and 301. Under the OSHA proposal, each establishment with 250 or more employees would be required to report on a quarterly basis, and establishments with 20 or more employees in certain designated industries would be required to report annually.
The agency also would have discretion to require any employer to submit more detailed information about specific injuries and illnesses.
As currently proposed, the rule would allow OSHA to obtain and release to the public detailed information regarding specific workplace injuries and illnesses, including the company name, location and incident-specific data.
OSHA noted that the change would give employees, potential employees, consumers, labor organizations and businesses and other members of the public important information about companies' workplace safety records.
However, NGFA expressed concern that the information released would not provide "meaningful context" and, therefore, would not be a "reliable measure of an employer's safety record or its efforts to promote a safe work environment."
The proposed rule would also require employers to submit confidential details about the company and information about its employees, which many consider proprietary business information.
In issuing its proposal, according to NGFA's letter, "OSHA ignores several court rulings that have found employers have a privacy interest in maintaining the confidentiality of such data and business information, and fails to consider the implications of publishing it."
For example, OSHA said it intends to publish the addresses of certain businesses that produce, store or maintain highly sensitive, hazardous or valuable products or commodities. Depending on the nature of the business, NGFA said publicizing locations and the number of employees could leave a business vulnerable to security issues.
NGFA reported that the proposed rule abandons OSHA's "no-fault" approach to recordkeeping without justification or analysis.
Under existing rules, OSHA encourages employers to record all possible qualifying incidents and allows that if an incident is later found to be outside the reporting requirements, it can be stricken. This protection may have resulted in employers erring on the side of "over-reporting" injury and illness incidents with the assurance that they could be corrected later, NGFA said.
The group said this potentially would give employers an incentive not to record those incidents, and "paradoxically, the outcome would be less — not more — information on workplace injuries."
Under the proposed rule, OSHA would require all records to be submitted electronically. However, NGFA pointed out that OSHA has not tested or verified its assumption that only a small portion of businesses do not have immediate access to computers or the internet. (This verification is required under the Small Business Regulatory Enforcement Fairness Act of 1996.)
NGFA said OSHA has grossly underestimated the costs of compliance, estimating it to be only $183 per year for establishments with 250 or more employees and only $9 per year for establishments with 20 or more employees in specified industries.
However, NGFA said, the agency failed to account for numerous costs associated with the proposed rule, such as the possible cost of adopting a new system to accommodate OSHA's filing system and training for a new system and implementation of electronic systems for businesses using only paper format, which is representative of most grain, feed and processing businesses.
Further, according to NGFA's statement, "OSHA provides no data, surveys or objective support for its assertions of the benefits that allegedly will flow from the proposed regulation. The agency's claims are mere speculation and conjecture that these benefits will emerge. Simultaneously, the agency ignores entirely the various negative consequences that are sure to occur."
In conclusion, NGFA said it believes OSHA's proposed rule will fail to enhance workplace safety and instead "will have the effect of driving up costs for grain, feed and processing businesses and pose a risk to increasing unemployment."