Update: OSHA Sued Over Recordkeeping Rollback

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

As expected, a lawsuit has already been filed opposing OSHA’s rollback of its electronic recordkeeping rule that we discussed here last week, and in more detail here.

For those of you just tuning in, OSHA last week repealed a major section of the Obama era recordkeeping rule that would have required certain businesses with 250 or more employees and employers in high-risk industries with 20 or more employees to send in to OSHA detailed non-confidential injury and illness information contained on OSHA Forms 300 and 301.  Injury and illness summary information contained on From 300A will still have to be sent to OSHA on an annual basis. OSHA’s poorly supported excuse for rolling back these requirements was concerned about employee confidentiality, even though the program was specifically designed so that OSHA would receive no confidential information

Public Citizen Lawsuit

Public Citizen’s Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists filed a lawsuit last Friday asking the US District Court for the District of Columbia to overturn OSHA’s rollback of the recordkeeping regulation.

According to Public Citizen attorney Michael Kirkpatrick,.

When it issued the electronic reporting rule after an exhaustive process, OSHA concluded that requiring the submission of workplace injury and illness data would greatly enhance worker health and safety. OSHA has now rushed through a new rule drawing exactly the opposite conclusion, but OSHA has failed to provide any good reason for reversing itself.

Chamber to OSHA: What Have You Done For Us Lately?

Despite the OSHA cave-in to employer attempts to cover-up injury and illness information, the Chamber of Commerce thinks the agency should have gone further. According to Politico, Marc Freedman, vice president of employment policy at the Chamber of Commerce, is “disappointed” with the rollback rule, because it failed to address the continuing obligation to send in injury and illness summary information, and because it didn’t eliminate language that prohibits employers from retaliating against workers who report injuries and illnesses.

The Chamber said that it will revisit a previous lawsuit that challenged the anti-retaliation language, alleging that it prohibited all employer drug testing programs. Actually, the language in the regulation just prohibits drug testing that is used to retaliate against employees.  OSHA has since issued a memo weakening the effect of that language.

Stop Making Sense: The Risk of Disclosing Summary (300A) Data

As noted above, one of the Chamber’s main concerns is that OSHA will continue to require employers to send in the Summary injury and illness data on OSHA Form 300A which OSHA will use to more efficiently target its enforcement inspections.  When the rule was originally issued in 2016, the Obama administration announced that it intended to make this information public so that employees and job seekers would know which companies are more dangerous, and employers could compare their safety records against others in their industry. The point was that making this information public would “nudge” the more hazardous employers to make their workplaces safer without direct OSHA intervention.

OSHA has retained the requirement that the information be sent to the agency, but in a bone thrown to the Chamber, the agency insists that the information will not be posted and cannot be made public under the Freedom of Information Act (FOIA) because disclosure of the information could interfere with OSHA enforcement.

How is that?

According to its explanation in the preamble to the rollback reg, “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

Let’s look more closely at that.

OSHA is apparently arguing that it doesn’t want high hazard employers to be able to use public data to realize that they may be higher on the OSHA inspection priority list.

This is odd, to say the least. Because in previous years, when OSHA required some employers to send in this exact information for enforcement targeting purposes, OSHA explicitly warned high risk employers that they were more likely to be inspected, in hopes that they would eliminate unsafe conditions before OSHA arrived.

Similarly, one of the goals of OSHA’s national and local emphasis programs is to warn employers in high-hazard industries that they may be at higher probability of an OSHA Inspection, and thereby encourage them to make use of OSHA’s compliance assistance programs to fix hazards before they were inspected.

In other words, providing information to employers that they should anticipate an OSHA inspection is a feature of these programs, not a bug. It’s called “prevention.”

This type of prevention program is critical to a tiny, underfunded agency like OSHA which can only hope to get to a small fraction of US workplaces each year. If disclosure of data gets employers to fix their workplaces because they have a heightened fear of an OSHA inspection, and reduces the number of employers that OSHA has to cite, that should be a good thing.

Police post signs on the highway warning speeders of cameras and radar surveillance. Do they interfere with traffic enforcement because they warn drivers that they may be at higher risk of getting a ticket?

Secretary of Labor Alex Acosta has testified that its better to get employers to prevent an injury before it happens, than to make OSHA cite them. “As a US attorney, I would talk to Chambers and said we can prosecute cases, but preventing wrong doing in the first place is more successful.”

So, how does any of this make sense? Apparently only the Chamber of Commerce knows for sure…


Reposted from Confined Space

Posted In: Allied Approaches

Union Matters

Get to Know AFL-CIO's Affiliates: National Association of Letter Carriers

From the AFL-CIO

Next up in our series that takes a deeper look at each of our affiliates is the National Association of Letter Carriers.

Name of Union: National Association of Letter Carriers (NALC)

Mission: To unite fraternally all city letter carriers employed by the U.S. Postal Service for their mutual benefit; to obtain and secure rights as employees of the USPS and to strive at all times to promote the safety and the welfare of every member; to strive for the constant improvement of the Postal Service; and for other purposes. NALC is a single-craft union and is the sole collective-bargaining agent for city letter carriers.

Current Leadership of Union: Fredric V. Rolando serves as president of NALC, after being sworn in as the union's 18th president in 2009. Rolando began his career as a letter carrier in 1978 in South Miami before moving to Sarasota in 1984. He was elected president of Branch 2148 in 1988 and served in that role until 1999. In the ensuing years, he worked in various roles for NALC before winning his election as a national officer in 2002, when he was elected director of city delivery. In 2006, he won election as executive vice president. Rolando was re-elected as NALC president in 2010, 2014 and 2018.

Brian Renfroe serves as executive vice president, Lew Drass as vice president, Nicole Rhine as secretary-treasurer, Paul Barner as assistant secretary-treasurer, Christopher Jackson as director of city delivery, Manuel L. Peralta Jr. as director of safety and health, Dan Toth as director of retired members, Stephanie Stewart as director of the Health Benefit Plan and James W. “Jim” Yates as director of life insurance.

Number of Members: 291,000 active and retired letter carriers.

Members Work As: City letter carriers.

Industries Represented: The United States Postal Service.

History: In 1794, the first letter carriers were appointed by Congress as the implementation of the new U.S. Constitution was being put into effect. By the time of the Civil War, free delivery of city mail was established and letter carriers successfully concluded a campaign for the eight-hour workday in 1888. The next year, letter carriers came together in Milwaukee and the National Association of Letter Carriers was formed.

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There is Dignity in All Work

There is Dignity in All Work