ACOEM Responds to OSHA Proposed Rulemaking on Tracking Workplace Injuries/Illnesses

September 27, 2018

OSHA Docket Office Docket No. OSHA–2013–0023
Room N–3653
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210

Re: Docket No. OSHA–2013–0023

To Whom It May Concern:

The American College of Occupational and Environmental Medicine (ACOEM) appreciates the opportunity to comment on OSHA’s Notice of Proposed Rulemaking: Tracking of Workplace Injuries and Illnesses. ACOEM, an international society of more than 4,000 occupational and environmental physicians, provides leadership to promote optimal health and safety of workers, workplaces, and environments. Our medical specialty, occupational and environmental medicine (OEM), is devoted to prevention and management of occupational and environmental injury, illness and disability, and promotion of health and productivity of workers, their families, and communities.

For nearly 100 years, ACOEM has served as a leading voice in the United States for improved health and safety in the workplace, and a key part of our advocacy has centered on the need for accurate data and recordkeeping of work-related injuries and illnesses. We believe the collection of workplace health data is fundamentally linked with the development of sound health care policies and more effective medical treatments. We previously have commented on the rule establishing the current regulation on Tracking of Workplace Injuries and Illnesses both through oral testimony at a public hearing and through formal submission to Docket No. OSHA-2013-0023. Although we broadly endorsed the intent and several specifics of the regulation, we made a number of recommendations to improve it that are relevant to the proposed changes in the rule.

OSHA now proposes to amend its recordkeeping regulations to remove the requirement for establishments with 250 or more employees that are required to routinely keep injury and illness records to electronically submit information from the OSHA Form 300 (Log of Work- Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA once a year. The proposed rule, would only require these establishments to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). As well, OSHA proposes to require that employers submit their Employer Identification Number (EIN) along with their injury and illness data. OSHA argues that the summary data is sufficient to identify and target establishments with high rates of injury and illnesses.

We continue to endorse the stated purpose of the Tracking of Workplace Injuries and Illnesses rule to “improve workplace safety through the collection of useful, accessible, establishment specific injury and illness data.” We believe the stated purpose of the original rule can deliver multiple benefits, including:
  • Advancing the science of occupational health and safety
  • Assisting in the identification of emerging safety and health concerns
  • Encouraging the development of best practices in workplace health and propelling quality improvement initiatives
OSHA recordkeeping serves more purposes than as a tool to target inspections. Whereas the OSHA 300A summary form may serve to help target inspections, it does not provide the detail important to furthering the epidemiology of occupational injury and illness that forms 300 and 301 offer. Collection of comprehensive injury and illness data for the working population, like any population, is foundational to understanding and mitigating the burden of work-related health problems. Public health would not have advanced at it has without this kind of information about the general population. Just as it is not enough to know the incidence of illness in a town to advance its public health, it is not enough to know simply which industries or establishments have the highest burden of poor health. The detail of injuries and illnesses is necessary to understand the causes of a population’s health burdens, whether this population is at work or in the community.

With respect to OSHA’s lack of experience using case level of detail, analysis of this type of data has been well-established as a tool for consultation, enforcement actions, and compliance with OSHA’s Whistleblower Protection Program through OSHA’s legacy Integrated Management Information System and foreseen in its successor, The Occupational Safety and Health Information System. These systems also allow public access for certain purposes. As well, analysis of case data is routine in epidemiology. In collaboration with the National Institute for Occupational Safety and Health and external researchers, OSHA would be able to use the richness of this data to identify emerging occupational health problems as well as improve success in managing historic problems.

We share OSHA’s concern about protecting the privacy of injured and ill workers that could potentially be breached if OSHA forms 300 and 301 are submitted. Although individual identifiers could be withheld from the public, we recognize that in smaller employers, unusual injuries and illnesses may permit identification of individuals. We feel that the public health value of the detail contained on these forms can be retained while protecting privacy through actions such as:
  • Maintaining this information within OSHA rather than making establishment-specific data broadly public. To more accurately reflect the true burden of occupational health and safety in the United States, this data could be reported publicly in the aggregated form.
  • Consider releasing reported information only to researchers who guarantee the anonymity of the data.
  • Avoid publicizing or releasing data that could identify injured or ill individuals by restricting data elements released to the public using the Centers for Medicare and Medicaid Services’ cell-size data restrictions, designed to protect privacy. Exemptions contained within the Freedom of Information Act would permit OSHA to withhold information to protect information about individuals in personnel and medical files and similar files when the disclosure of that information would constitute a clearly unwarranted invasion of personal privacy.
We concur with OSHA that employers should be required to submit their EIN with their injury and illness data as one means of avoiding duplicative reporting and increasing the ability of the Bureau of Labor Statistics to match data collected by OSHA. We would add that ACOEM recommends that OSHA permit (not require) reporting by enterprise, rather than by establishment. Enterprise-level reporting will increase the likelihood that the chief corporate officers are aware of potential variations in the safety of different business processes and establishment practices that put employees at risk. Greater corporate awareness may enhance corporate oversight and improve health and safety throughout all establishments. Given the complexity of some corporate structures, however, and the possibility this may complicate reporting all establishment data, we advise against requiring enterprise-level reporting for businesses with many establishments.

On the other hand, we recognize that some businesses may be legitimately concerned that publication of establishment specific data could result in misappropriation of confidential business data and/or unfair labelling of a business leading to competitive disadvantages. It is essential that steps be taken to avoid these adverse outcomes.

OSHA has at least partially addressed these types of concerns through its response to the Privacy Impact Assessment Questionnaire. This type of careful attention to business privacy concerns should be extended to the recordkeeping rule. We believe that Freedom of Information Act exemptions may be used to protect proprietary business data. Alternatively, the rules could be written based on other precedent in OSHA regulations to guarantee such protections. Unfair labelling of a business is best addressed through several measures to assure accurate recordkeeping by all businesses as we outlined in our March 10, 2014 response to the original proposed rule:
  • Enhance the number of record audits by OSHA. Provide an electronic tool for employers to self-check their submitted information for recordkeeping errors and for deviance from industry averages.
  • Increase penalties for willful under-reporting, and/or safety incentive programs that discourage employee reporting.
  • Encourage employees, unions, physicians, and other members of the public to report patterns of willful under-reporting and publicize whistleblower protections.
  • Further increase the number of targeted inspections of companies deviating (positively or negatively) from the industry-norm incident and DART rates.
Finally, we strongly support the existing rule’s anti-retaliation measures as a critical tool to support accurate reporting by all businesses. Fear of retaliation has been identified as one of the key factors that result in well-documented under-reporting of occupational injury and illnesses.

We offer our assistance to OSHA as it strives to find the right balance between relieving employers of unnecessary regulatory burden and creating an accurate, modern electronic recordkeeping system to support enforcement and advance the science of protecting the American workforce as foundational to sustaining its competitiveness in the global economy.


William G. Buchta, MD, MPH, FACOEM
ACOEM President