Part 2: OSHA Recordkeeping and Electronic Submission Rule Questions, Answered

March 22nd, 2018 by Jay Finegan, CHMM

Welcome back! As promised, I will be answering more questions about the new OSHA Recordkeeping and Electronic Submission Rule in this part 2 blog post. To read part 1 and part 3, click the links below:
Part 1
Part 3

Question: How are employees going to react? Will they like the new rule? Will they view it as a pain? Or will they just not really notice or care?

Answer: I’m not sure that employees will care all that much. Their concerns tend to be focused on the actual work environment, not recordkeeping. When someone gets hurts, they know it, and they will have opinions about whether the injury was an accident or the inevitable result of an employer who simply cares more about profits than safety.

In all my years in the EHS department of my former employer, we naturally had a few employees ask for copies of their records, invariably because of some worker’s comp claim they were pursuing. We never had any individual or union representative inquire about our recordkeeping in general. But the complaints against supervisors and managers were regular, and – to be honest – usually deserved. In my experience, when workers raised safety concerns, it was not uncommon for the worker to overestimate the hazard, but there was always at least some legitimate basis. In a particularly memorable example, when one worker raised a safety concern, his supervisor told me we should simply ignore it – the worker was just trying to get out of work and we had to show the union who the boss was. It’s hard to believe that such ignorance still exists, but it does. Moreover, we got into the debate over this very concern not just once, but three times! Pardon my French, but idiots like this supervisor have a far, far greater impact on how employees perceive the company’s commitment to safety than anything the company does with record management and statistical reporting. And, yes, this supervisor ultimately got himself fired for such arrogant and authoritarian attitudes.

Question: How about employers? Does the ability to learn from all of this benchmarked data outweigh the potential burden of compliance?

Answer: Any given employer already had access to its own data, so submitting the data to a federal database wouldn’t really yield too many additional direct benefits. Aggregating this company’s data with others in its industry would seem to have merit, except that Bureau of Labor Statistics, or BLS, has been publishing these kinds of industry analyses for decades. So what was OSHA intending?

Officially, OSHA hoped that making injury data publicly available might “nudge” some employers into abating workplace hazards, based on the availability of data from other individual companies. That’s possible, but like so many agencies, OSHA had a very aggressive agenda under the Obama administration. I think the nudge asserted was really intended to be an industry-wide kick in the fanny.

Consider the Emergency Planning and Community Right-to-Know Act, a.k.a. EPCRA, which is irrefutably the most effective pollution prevention law Congress ever passed. Among other things, EPCRA established the Toxic Release Inventory, or TRI for short, which is nothing more than a publicly available database. Each year, covered polluters must upload to the TRI database what chemicals were released into the environment, and in what quantities. Environmental activist organizations regularly mine this data to identify the top polluters in a given city or state, which they then release to local media. This public notoriety, reinforced with the modern focus on global sustainability, has resulted in a 45% reduction in the total amount released, at least for listed chemicals. A study in the Journal of Land Use & Environmental Law, published by the Florida State University College of Law, notes that of all the fears and concerns raised while EPCRA was being discussed, many of which parallel those raised for the recordkeeping rule, this shame game was the only one that actually came true to any meaningful degree.

I remember reading a newspaper article from the early 1990’s in which my former employer was identified as one of the top 5 polluters in Cleveland. Between the ignominy of this article and the increased oversight that would come with a Title V permit, the company decided to replace a vapor degreaser, the process which triggered both, with an aqueous wash system. While the aqueous wash wasn’t as effective at cleaning parts as perchloroethylene, it was good enough – and it dropped the company out of the public eye and off of Ohio EPA’s Title V radar screen.

Personally, I have few doubts that OSHA was hoping for, and continues to hope for, comparable improvements in worker safety.

As for the burden, let me start by reviewing the three ways to submit data to OSHA’s Incident Tracking Application, or ITA. First, you can log into the ITA and manually enter the data site by site and field by field. This method makes the most sense only if you have to report data for a very small number of facilities. Second, you can prepare a text file called a CSV file, where the individual data elements in the file are separated by commas. EXCEL makes it easy to assimilate the required data and save it in the required format, although it might take some time to manually prepare a file that covers a large number of facilities. This file is where that name field as the primary key poses the greatest risk. Both of these methods require a certain amount of direct interaction with the ITA system, such as creating a user account and setting up the facility or facilities for which data will be reported.

Finally, some EHS information systems may embed OSHA’s Application Programming Interface,or API. The API allows an authorized user to perform any of the functions, other than creating a user account, which could be done inside the ITA directly from within the EHS information system. The API can upload data on either a facility-by-facility basis or for multiple facilities at once. Interestingly, unlike the CSV file, it uses a system-generated ID rather than the facility name as the primary key!

OSHA estimated that submitting data would take from 20 minutes to several hours, depending upon the size of the organization and the amount of data to be submitted. Especially at the high end, these estimates presume manual data entry and/or manual preparation of the CSV upload file. If the EHS information system can automatically prepare the upload file or submit the data via the API, the burden should be no more than 20 minutes for any submitter. This, of course, assumes that the employer stays on top of its injury data over the course of the year, which it should be doing anyway, as this is a long-standing regulatory requirement.

Question: What sort of penalties are employers looking at for noncompliance? What’s enforcement going to look like?

Answer: First, it is important to note that OSHA recently raised its maximum penalties: a willful violation can now be penalized up to $129,336; a serious violation up to $12,934. And the penalties are now keyed to inflation so that they will continually and automatically adjust – usually upward.

Second, it is important to recall that many companies, like Lowes, AK Steel, and General Motors, were assessed penalties in excess of $100K for recordkeeping issues alone, and these were assessed under the old rules. Comparable fines today would be approximately 2/3s higher.

And finally, it is important to note that a database makes it much easier for OSHA to mine data. On the one hand, OSHA will be able to identify reporting violations more easily, which – as noted – can in and of itself lead to citations and substantial penalties. But while data mining can help OSHA identify potential target companies for inspection, OSHA is still handcuffed by a serious shortage of inspectors. Between natural attrition and the hiring freeze imposed by President Trump, OSHA inspector staffing is down about 4% over the last year, continuing a decades-long trend. In fact, OSHA’s current staffing is less than what it had in 1975, even though both the number of workplaces and the number of workers has doubled. Under its current staffing, even if OSHA wanted to inspect every covered employer, it would take well over 125 years. What all this means is that the risk of an inspection, which was very low before the new rule was passed, has not substantially changed. It may, in fact, be even lower now, unless, of course, you happen to be among the worst of the worst of the worst.

Stay tuned for the final part of this 3-part blog series!