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  • ACOEM Comments on Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses

    March 10, 2014

    Via Electronic Submission: http://www.regulations.gov

    The Honorable David Michaels
    Assistant Secretary
    Occupational Safety and Health Administration
    U.S. Department of Labor
    200 Constitution Avenue, N.W.
    Washington, D.C. 20210

    Re: Docket No. OSHA-2013-0023
    Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses

    Dear Assistant Secretary Michaels:

    The American College of Occupational and Environmental Medicine (ACOEM) appreciates the opportunity to comment on OSHA’s Proposed Rulemaking to Improve 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.

    In recent years, ACOEM has been particularly active as an advocate for accurate data and recordkeeping. Heightened interest in this topic, and national media investigations indicating that some employers were under-reporting work-related injuries and illnesses that occur among their current employees, led ACOEM in 2008 to host a special forum exploring OSHA reporting standards in New York at the annual American Occupational Health Conference.

    ACOEM continued to raise awareness of the issue after this forum, calling on OSHA to consider modifications to its reporting process during a special 2008 Congressional testimony (U.S. House of Representatives Education and Labor Committee, June 19, 2008) to ensure that pressure was not placed on OEM physicians to under-report. Further, ACOEM membership participated in a Government Accountability Office survey, which revealed that the majority of survey respondents had felt pressured to alter their clinical decision-making concerning causation and/or therapy so as to reduce OSHA recordable reports for some employers. ACOEM also expressed its concerns to OSHA and provided resources and background to media covering the story. In 2010, ACOEM participated in OSHA’s invitation-only workshop on Modernization of Recordkeeping, aimed at a closer examination of the purpose, scope and design of the reporting system.

    Earlier this year, we provided oral testimony at a public hearing about OSHA’s Proposed Rulemaking to Improve Tracking of Workplace Injuries and Illnesses, providing preliminary comments. Today we are pleased to extend those comments and further outline our position on OSHA’s proposed rule.

    It is important to note at the outset that OSHA’s proposal comes at a time when the American workplace is increasingly focusing its attention on employee wellness, health promotion and productivity. Due to healthcare reform patient-physician and employer-employee relationships are (or soon will be) experiencing major changes. The relationship of safety to overall well being in the workplace is clear, and thus we believe that proposals to improve safety can help employers as they strive to promote better health among their workers.

    ACOEM’s advocacy is aimed at ensuring that workers’ health and safety is optimized and that health policies impacting workers — whether created by employers or the government — are well conceived and fairly and effectively implemented.

    ACOEM concurs with OSHA that the time is overdue for modernization and improvement in the existing reporting system for workplace injuries and illnesses. With this submission, we offer comprehensive and detailed written comments about the specifics of OSHA’s proposed rule as it pursues its goal of modernization and improvement.

    With these comments, we want to again emphasize our endorsement of the overall goals of the rule — as we did in oral testimony earlier this year — while at the same time raising several issues that we feel are important and should be addressed.

    First, ACOEM endorses the stated purpose of the proposed rule to “improve workplace safety through the collection of useful, accessible, establishment specific injury and illness data.” We believe the stated purpose of the rule would 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

    We believe that two aspects of the proposed rule would have particular utility in reaping these benefits: First, it expands the scope of data collection to require a much more comprehensive set of establishments to transmit their injury and illness records to OSHA; and second, it modernizes the reporting system by transitioning to an electronic format, which is overdue and should make data relevant to many stakeholders accessible in a timely way.

    We strongly concur with OSHA’s goal of gathering establishment-specific information as an approach to better target those workplaces where workers are at greatest risk for enforcement activities. In addition, we believe OSHA’s proposal of making establishment-specific injury and illness data easily available to the public is laudable because it would:

    • Encourage employers to maintain and improve workplace health and safety to support their reputation and facilitate comparisons with other employers
    • Enable employees and potential employees to make more informed decisions about places of employment
    • Allow members of the public to make more informed decisions about current and potential companies with which to do business
    • Facilitate the awareness of surrounding medical communities of workplace issues affecting their patients

    While we endorse OSHA’s overall goals, however, we have concerns that the rule as written may have many unintended consequences, foremost of which are in three categories:

    We believe that establishment-specific and open public reporting of injury and illness data may promote under-reporting of this data to avoid being “targeted” by OSHA and to avoid damaging public reputation essential to attracting employees and business. The desire to avoid reputational harm and OSHA inspections may create further pressure by some employers on occupational medicine personnel to downgrade the severity of their diagnoses and withhold appropriate treatment.

    Breaching of confidentiality
    Despite the withholding of names from the information published by OSHA, sufficient information may be available in the reported information to identify individuals working for smaller employers or with unusual illnesses or injuries.

    Moreover, establishment-specific information may serve as a catalyst for unwarranted negative public attention, resulting in adverse business consequences and costly and unnecessary litigation. This public attention may be unwarranted for a variety of reasons. For example, the information may represent over-reporting by employers anxious to avoid accusations of under-reporting. There may be unique business contexts, not reflected by the information. And there is the likelihood that the public would misinterpret some data.

    Information technology challenges
    Employers currently use a wide variety of electronic OSHA recordkeeping programs that will need to be re-coded in order to create interfaces with an OSHA reporting website, creating additional costs and burdens. Even today, in some remote areas of our country, not all employers currently have access to the Internet.

    ACOEM supports the spirit and intent of OSHA’s proposed rule, but we believe the following recommendations would strengthen it considerably:

    1. Take steps to ensure accurate recordkeeping.
    The foundation of any improvement in understanding the true burden of occupational disease and injury in the United States begins with accurate recordkeeping. Any improvement in reporting achieved by the proposed rule will be undercut by inaccurate reporting. ACOEM has previously testified regarding its concerns regarding recordkeeping (see Appendix A).  In this testimony we stated:

    “From the public health perspective, the OSHA Log was created as a tool to describe the burden of occupational injuries and illnesses on society. This data drives occupational health and safety resources. It is also used to target interventions to address industries and processes that carry the greatest risk. When followed over time, the log can help evaluate the effectiveness of these interventions. However, the OSHA log can only support these functions to the extent that it is valid and reliably maintained. Most importantly, society’s interest in preventing work‐related injuries and illnesses is foiled when our picture of the true burden of work‐related injuries and illnesses is distorted.”

    With this overview in mind, we suggest several specific steps to increase the likelihood of validity and reliable maintenance of the OSHA log:

    • Further increase medical record audits to assure accurate recordkeeping and reporting.  500 audits a year are insufficient to assure compliance.
    • 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.
    • In addition, the Recordkeeping Standard itself deserves review to better reflect current employment trends and medical practice. Large swaths of workers are not currently covered by the recordkeeping standards. The dramatic increase of the “contingent” workforce must be recognized, especially given some evidence that they may be particularly at risk of exposure to high hazard jobs. As a part of this effort, OSHA should re-evaluate the definition of “first-aid” to reduce the likelihood that necessary medical care is being withheld to avoid a “recordable.”

    As a part of OSHA’s overall effort to ensure the collection of accurate data, OSHA should consider expanding the accessibility of its Integrated Management Information System (IMIS) data to facilitate its use for research. Of particular utility will be industrial hygiene data collected as part of exposure assessments. Such data, which should be gathered in a way that protects individual privacy and business confidentiality, could help advance understanding of occupational disease and in particular emerging occupational diseases.

    2. Allow data updating.
    We believe the accuracy of reported data could be optimized by permitting, though not requiring, employers to update their data after submission as new information becomes available about specific injuries, exposures, and diseases.

    3. Widen the range of occupational health indicators.
    ACOEM believes that the true burden of occupational safety and health cannot be captured effectively by OSHA-log data alone. We recommend that OSHA collaborate with the Bureau of Labor Statistics and The Council for State and Territorial Epidemiologists to publicize a broader suite of occupational health indicators, which, taken together, would provide a better picture of the true burden of occupational safety and health in the United States.

    4. Advance electronic reporting, but with precautions.
    While electronic reporting is a laudable goal, we believe the proposed rule’s electronic reporting requirement should be phased in order to:

    • Provide adequate time for occupational software vendors to update their software to interface with the OSHA data warehouse.
    • Certify occupational health software that meets file type and interface requirements with the OSHA site.
    • Pilot the OSHA software and data interchanges the way most large software companies pilot new software to avoid glitches affecting large numbers of businesses.
    • Better estimate the relative efficiencies and burden with electronic vs. paper reporting.
    • Initially, exempt employers who do not have access to the Internet pending full distribution of Internet services throughout the nation.

    Rather than mandating that all employers report electronically immediately on promulgation of the final rule, OSHA should consider providing incentives for employers to do so. Examples of incentives might include:

    • Two-year immunity from targeted inspection if the reporting is linked with written plans to prevent reported serious or recurrent injury.
    • Public recognition of companies that are active participants in the electronic reporting process, such as through press releases acknowledging participation.
    • Allow OSHA inspectors to offer warnings or technical or compliance assistance in lieu of citations when non-serious violations are discovered in the workplace.

    5. Protect privacy.
    In a data environment in which privacy protections are becoming increasingly important, ACOEM believes OSHA’s proposed rule can be strengthened. Several steps are recommended:

    • Require all companies to report, as stated by the rule, but maintain 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 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.

    6. Permit reporting by enterprise, rather than by establishment.
    We concur with OSHA’s proposal to expand the number of establishments reporting to achieve a more comprehensive picture of occupational health and safety. However, ACOEM recommends that OSHA permit (not require) reporting by enterprise, rather than by establishment.

    We agree with OSHA that 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.

    ACOEM believes that these recommendations would significantly improve OSHA’s proposed rule and help it achieve its goal of improving workplace safety and health through the collection of useful, accessible injury and illness data, and we urge their adoption.

    We offer our assistance to OSHA as its rulemaking process continues, and again thank you for the opportunity to contribute.


    Ronald R. Loeppke, MD, MPH, FACOEM

    Enclosure — June 2008 Statement, House Education and Workforce Committee