Record-keeping rule could be a burden

Could we see the end of OSHA 200 and 101?

Congressional representatives continue hearing conflicting arguments about a proposed record-keeping rule from the federal Occupational Safety and Health Administration (OSHA) in Washington, DC. Small business leaders say the rule would be an unreasonable burden, while federal officials claim the new rule actually would reduce the administrative requirements for employers. Congress is left in between the two sides mulling over what to do with the proposal.

The proposed rule would expand the record-keeping requirements for some small businesses, but OSHA says the overall impact would be to reduce the burden on employers while ensuring the agency receives information necessary for it to protect workers. Gregory R. Watchman, acting assistant secretary of labor for occupational safety and health, testified before the House Committee on Small Business recently and explained that the proposed rule was developed in 1996 to address concerns that the existing requirements were too complex. Committee Chairman Jim Talent (R-MO) called the investigative hearing to examine the proposed rule’s impact on employers.

Change represents ‘comprehensive overhaul’

"The proposed changes to the record-keeping rule would constitute the most comprehensive overhaul of the system since 1971," Watchman told the committee. "Among the proposed changes are revision of the forms and regulations, elimination of the guidelines, and consolidation of guidance found in various OSHA guidelines, directives, and letters of interpretation."

The proposed rule would replace the current OSHA 200 and OSHA 101 forms used for reporting injuries and illnesses with new forms, OSHA 300 and 301. The new forms would fit on standard 8.5 inch by 11 inch paper to reduce copying problems. They also would provide information on the cause of the illness or injury. OSHA also is developing software that will contain the forms and decision logic to help employers complete them. The software will help employers fill out and print the required forms, as well provide a basic analysis of the employer’s injury and illness record. The software will be free.

As with current record-keeping rules, the proposed rule would exempt employers in industries with lost-workday injury and illness rates of no more than 75% of the national average. Those employers would not have to follow the same incident reporting requirements. For some industries, the proposed rule would expand that exemption to employers with fewer than 20 employees. In construction, the exemption cutoff would remain at 10 employees.

Watchman says OSHA estimates that 620,879 establishments would be subject to recording and reporting requirements under the proposed rule, compared with 756,238 under the current rule. That means that only about 10% of all U.S. employers would be covered by the proposal. Some of those employers would have to maintain records but not necessarily submit them to OSHA, further reducing the administrative burden.

"OSHA estimated that the proposed revisions would reduce the regulatory burden on businesses by $4.7 million per year, with the average firm having to spend about $40 per year to comply," Watchman says.

For the construction industry, the proposed revision would improve data collection by requiring comprehensive records for major construction projects. Other elements of the proposal include elimination of the need for employers to determine whether an individual incident is an "injury" or an "illness," provision of a glossary of definitions for key terms such as "first aid treatment," provision of a table in which employers can look up recording criteria for specific conditions, and permission for employers to keep all records on computer or at alternate company locations.

One of the most problematic parts of the proposed rule is that OSHA would, for the first time, require general contractors to log all injuries and illnesses of their subcontractors’ employees.

Not surprisingly, the employers that face more regulation from the proposed rule are complaining. The Congressional committee also heard testimony from Alan McComb, president of Harold McComb and Son, a small contractor in Fort Wayne, IN. He spoke as a representative of Associated Builders and Contractors, a national association based in New York City that represents more than 19,000 construction-related firms.

OSHA’s Watchman had argued that a few employers would be required to increase their administrative burden, and most would be allowed to decrease it, but McComb says that trade-off is unacceptable to those who will have to spend more time and money on record keeping.

"Ironically, at a time when the public wants smaller government, OSHA’s proposed record-keeping change calls for more government bureaucracy," McComb told the committee. "Small companies as well as large companies must make safety their highest priority, but a safety rule that would emphasize paperwork over preventing accidents on the job site is an inappropriate use of a small employer’s safety resources."

In particular, McComb objected to parts of the proposed rule that would expand the definition of recordable incidents in some circumstances, require employers to post OSHA logs at all job sites, and the require construction companies to log all subcontractor injuries and illnesses.

McComb produced a stack of OSHA forms, telling the committee he already was required to do a huge amount of paperwork covering his company’s 30 employees. The proposed rule would only increase that burden, he argued.

"For example, the application of a Band-Aid on a small cut or blister would be a recordable incident under the new rule," McComb says. "This will do nothing to prevent serious accidents or fatalities, nor will it improve safety. This one-size-fits-all approach ignores the unique nature of the construction industry and, for small construction firms, would shift resources away from improving workplace safety to filling out bureaucratic paperwork."

OSHA is continuing to fine-tune the proposed rule, and Watchman promised the committee members that the agency would consider the complaints of McComb and other small employers. The House committee also will forward a recommendation to the agency.