By Ross Eisenbrey, Economic Policy Institute
On a bipartisan basis going back at least to the Reagan administration, the Occupational Safety and Health Administration (OSHA)—the Department of Labor agency that enforces the right of workers to have a safe workplace—has required employers to keep accurate logs of injuries and illnesses, and has fined them if they fail to keep those logs for five years. Every OSHA administrator has recognized the value of this record-keeping, as a way to make employers pay attention to unsafe practices and address them, as well as to ensure accurate statistics for research, to show progress or lack of progress in improving workplace safety, and to help target the most dangerous workplaces.
Nevertheless, in Volks Constructors v Secretary of Labor, a court blocked OSHA from fining employers for various record-keeping failures that occurred more than 6 months before the citation. The court ruled that OSHA’s regulations didn’t clearly establish that the duty to maintain accurate records is an ongoing duty rather than just a duty to record each incident accurately at the time it occurs. Thus, if OSHA finds that an employer has for many years been hiding the fact that workers have repeatedly been burned, for example, or has failed to record numerous forklift accidents and injuries, it can only cite the employer for inaccuracies arising within the past six months.
The court did not hold that OSHA couldn’t write new regulations that do impose an ongoing duty to maintain accurate injury and illness records. As Judge Merrick Garland wrote in a concurring opinion:
To the contrary, where a regulation (or statute) imposes a continuing obligation to act, a party can continue to violate it until that obligation is satisfied, and the statute of limitations will not begin to run until it does.
OSHA responded by rewriting its record-keeping rule to impose a clear, ongoing duty to maintain accurate records. The process of amending its regulations involved notice to the public and publication of a proposed rule, acceptance and review of public comments, and a great deal of analysis. Employer groups complained, of course, because they want to escape responsibility for bad record-keeping and even for deliberately misleading the government and the public about their safety records.
But the purposes of the Occupational Safety and Health Act are clearly better served by a rule that doesn’t permit employers to escape violations if they can manage to hide them from OSHA for six months. The administration of the Act and the right of employees to a workplace free from known hazards both require accurate records of the harm that befalls employees at work. Moreover, the ability of responsible employers to learn about unsafe practices and of government agencies and public safety advocates to devise effective solutions depends on learning that employees are being sickened or hurt.
Unfortunately, Republicans in Congress are attempting to use the Congressional Review Act to throw out this commonsense clarification to the rule. Good records on workplace injuries are vital to OSHA’s mission of protecting people on the job, and the rule imposes no additional burden on businesses. Repealing it will simply allow businesses to hide their negligence and hamper OSHA’s ability to do fulfill its mission.
In a letter, two past commissioners of the Bureau of Labor Statistics—one a Republican and one a Democrat—make clear that good public policy supports OSHA’s rule and should lead every responsible member of Congress to oppose its repeal.
Dear Chairman Alexander and Ranking Member Murray:
We are two former Commissioners of the Bureau of Labor Statistics (BLS), one appointed by President George W. Bush and one appointed by President Barak Obama. We are writing you to ask that you oppose S.J. Res 27, a Congressional Review Act Resolution that repeals an OSHA’s injury recordkeeping rule.
The OSHA injury records maintained by employers are the basis for the BLS’s Survey of Occupational Injuries and Illnesses (SOII). Statistics from this survey play an important role in setting national workplace safety strategies, and are widely used by employers for benchmarking their own injury experience. Overturning OSHA’s rule that requires certain employers with eleven or more employees to keep complete and accurate records of workplace injuries and illnesses will likely have unintended and unfortunate consequences on the integrity of injury data.
In many industries, employers must provide data on their injury rates in competing for contracts. If this legislation passes, responsible employers who accurately record workplace injuries will be at a disadvantage competing with employers who do not maintain accurate records.
It is important to protect the accuracy of employer injury data, and passage of this legislation is likely to result in less accurate data.
Thank you for your consideration.
Kathleen Utgoff, PhD
Bureau of Labor Statistics Commissioner (2002-2006)
Erica Groshen, PhD
Bureau of Labor Statistics Commissioner (2013-2017)