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November-December-2014

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2 6 PalletCentral • November-December 2014 palletcentral.com SHA has recordkeeping on its mind … in fact, the accuracy of injury and illness reporting has been under scrutiny by the agency for about five years now. In 2009-2011, OSHA operated a National Emphasis Program (NEP) focused on recordkeeping. As part of this initiative, during worksite visits, OSHA inspectors interviewed employers, employees, insurance companies and medical providers to determine the prevalence of inaccurate injury/illness (I/I) reports, the role of employers in (possibly) manipulating data by discouraging workers from reporting "OSHA recordable" events through incentive and disciplinary programs, or by influencing whether health care professionals provide "medical treatment" (recordable) or "first aid" (not recordable). TThe end result of the NEP was that about half of the employers studied did have some degree of underreporting. In 2012, OSHA followed up by releasing a interpretative policy document which indicated that incentive programs linked heavily to I/I rates (e.g., those that reward workers or work teams only if they go a certain period without any OSHA recordable I/I) would be considered a violation of 29 CFR Part 1904 if, in fact, I/I were not recorded as a result, and that if workers were penalized for reporting an I/I that required medical treatment, or resulted in days away from work or restricted duty, they could seek recourse from OSHA by filing a Section 11(c) "whistleblower retaliation" claim. The same March 12, 2012, memorandum also said that disciplinary programs that resulted in disparate discipline against a worker who was injured or became ill, when compared with the discipline meted out to an unaffected worker would similarly be considered violations. The modification to employers from underreporting injuries were perceived to be: elimination from OSHA's site-specific targeting inspection program for high hazard/high injury worksites, preferential status when bidding on contract where safety prequalification is an issue, and even lower insurance premiums. OSHA has followed up with two rulemaking initiatives: the first, a proposed rule that would require electronic submission by many employers of its injury and illness data, for public dissemination; the second, a final rule that takes effect on January 1, 2015, and adds to those events that must be affirmatively reported to OSHA by the employer within specified time periods. On November 8, 2013, OSHA issued a proposed rule that would require most employers to electronically report their injuries and illnesses to the agency and the data would be posted on the OSHA website. This has been called by some "public shaming" and many concerns were raised about the use of this data to unfairly target employers (e.g., by competitors using the data) or invade workers' privacy rights. More recently, OSHA subsequently reopened the comment period, until October 14, 2014, to seek additional input on the following issues: (1) What are the costs and benefits of OSHA using this rule to address the issue of employers who discourage workers from reporting injuries and illnesses (e.g., through incentive or discipline programs)? (2) What other actions can OSHA take to address the issue of employer discouragement of reporting? SAFETY O A Tale of Two Injury/Illness Rulemakings By Adele L. Abrams, Esq., CMSP

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