OSHA rethinks implementation of record-keeping proposal

Nation's Business, Nov, 1997 by Steve Bates

An outpouring of concern by members of Congress, small-business owners, and others has prompted the U.S. Occupational Safety and Health Administration (OSHA) to rethink its proposed changes to a federal regulation governing record keeping on injuries illnesses.

The regulation requires many businesses to maintain records of workplace injuries and illnesses for up to four years. OSHA's proposed revision, which the agency says is intended to cover fewer businesses and be less burdensome than the current regulation, tentatively had been slated to take effect as early as Jan. 1. But in the face of criticism that the new version would, in fact, be more inclusive and more burdensome than the current rule, OSHA announced in September that the changes might not take effect until late 1998 or early 1999.

Many aspects of the proposal are in dispute. For example, while OSHA says the new rule would affect about 620,000 U.S. businesses, the U.S. Small Business Administration estimates that it would cover about 1.4 million establishments -- slightly more than under the current regulation. Other disputes center on how much time and effort small businesses would have to spend complying with the new rule and on whether opening workers' injury and illness records to public inspection would violate their privacy Tights.

"We have gone to great pains to reduce the burden and simplify the forms," Gregory R. Watchman, OSHA's acting director, said at a Sept. 17 hearing of the House Small Business Committee.

The panel's chairman, James M. Talent, R-Mo., disagreed. "I believe that OSHA has underestimated by a factor of hundreds of thousands the number of small-business establishments which under the proposed regulation would be subject for the first time to record-keeping requirements," Talent said. "I also believe that OSHA has seriously underestimated the burden on these small businesses."

Earlier this year, OSHA said that restaurants, cleaning services, and automotive-supply stores are among the businesses that likely would have to begin maintaining safety records under the rule changes. Doctors' offices, bowling centers, and parking garages are among those that might be exempted based on recent nationwide data showing that such businesses have become relatively safe places to work. In many affected industries, firms with fewer than 20 employees would be exempt.

The regulation covers each location where a business employs people, it would hit the construction industry particularly hard, according to critics. Companies would be required to report injury and illness statistics for their subcontractors as well as for their own workers.

"This will cause more time behind a desk instead of on the job site promoting safety," said Alan McComb, president of Harold McComb & Son, Inc., a general-contracting firm based in Fort Wayne, Ind.

Lawrence Halprin, an attorney with Keller and Heckman LLP in Washington, said OSHA has failed to justify its proposal to allow fellow employees, former employees, and their lawyers to examine injury and illness records in a worker's personnel file. The provision "would violate the fundamental rights of privacy and due process, which are guaranteed by the Constitution of the United States to both employees and employers," said Halprin.

OSHA's Watchman said the regulation would generate statistics that would help small businesses evaluate their safety practices. He added that his agency would offer businesses free computer software to help them comply with the changes.