NRCA's testimony regarding OSHA's proposed revisions to its record-keeping rule, July 2000
This statement was given by Bill Steinmetz, NRCA's risk management consultant, to
the U.S. House of Representatives' Subcommittee on Workforce Protections, a subcommittee
of the House Committee on Education and the Workforce, about the Occupational Safety
and Health Administration's (OSHA's) proposed revisions to the Occupational Injury
and Illness Recording and Reporting Requirements. Steinmetz testified on July 20.
"Chairman Ballenger and members of the subcommittee, I would like to thank you for
this opportunity to testify in opposition to the proposed OSHA record-keeping rule.
Mr. Chairman, my name is Bill Steinmetz, and I am the risk management consultant
for the National Roofing Contractors Association (NRCA). Before that, I was the
safety and loss control manager for Midland Engineering Co. Inc., a roofing and
sheet-metal contractor in South Bend, Ind. While I worked there, Midland Engineering
performed some 600 projects a year throughout the Midwest, including the United
Center—home of the Chicago Bulls and Chicago Blackhawks—and the cathedral
at Notre Dame—home of the Fighting Irish.
"NRCA commends you, Chairman Ballenger, for holding this hearing and has been a
supporter of your legislative initiatives regarding OSHA. The subcommittee's hearing
on OSHA's proposed Occupational Injury and Illness Recording and Reporting Requirements,
or "record-keeping" requirements, particularly is important given the dramatic negative
changes it would bring to existing record-keeping requirements.
"NRCA members are well aware that roofing is a high-hazard industry and the safety
and health of their employees—their most valuable asset—is paramount.
NRCA takes pride in its Roofing Industry Partnership Program for Safety and Health
(RIPPSH), which was developed in conjunction with OSHA; the United Union of Roofers,
Waterproofers and Allied Workers; CNA Insurance; and National Safety Council. It
was put into effect in OSHA's Region V in 1996. Subsequently, as reported by the
National Erectors Association, construction fatalities from falls dropped by 50
percent in OSHA's Region V—the region in which RIPPSH is a pilot program, including
Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.
"NRCA is an association of roofing, roof deck and waterproofing contractors. Founded
in 1886, NRCA is one of the oldest associations in the construction industry and
has more than 4,700 members. NRCA contractors are small, privately held companies;
the average NRCA member employs 35 people in peak season and has sales of about
$3 million per year.
"Small businesses, such as roofing contractors, have found it difficult to cope
with the volume and complexity of federal regulations with which they are required
to comply. NRCA members who were delegates to the 1995 White House Conference on
Small Business called for strengthening the Regulatory Flexibility Act were grateful
when Congress passed and the president signed the Small Business Regulatory Enforcement
Fairness Act (SBREFA) in 1996.
OSHA's current and proposed rule and SBREFA
OSHA's current record-keeping rule already places a significant burden on our nation's
businesses. It is paperwork intensive and requires contractors to maintain OSHA
200 logs of injuries and illnesses. The new rule would replace the OSHA 200 log
with a new, reconfigured format and new definitions that OSHA claims will be simpler
and more efficient. NRCA opposes the new rule because it would create even more
subjectively enforced compliance requirements and increase contractors' paperwork
levels.
For example, the proposed record-keeping rule contains such broad definitions for
injuries and illnesses that even minor ailments would have to be recorded. The rule
also requires employers to record injuries that originally incurred outside the
workplace, which, in effect, would hold employers liable for activities outside
their control. In addition, the rule requires subcontractors to give employee injury
and illness records to general contractors and provide all such forms to employees,
former employees or employee representatives. This creates privacy concerns and
potentially could lead to further litigation for employers.
Perhaps the basis for OSHA's attempt to dramatically expand all aspects of record
keeping is the suspicion that employers habitually underreport injuries and illnesses.
However, this assumption is contradicted by research recently done by the agency.
In a report to OSHA's National Advisory Committee on Occupational Safety and Health
on Jan. 18, Assistant Secretary of Labor Charles Jeffress stated OSHA's most recent
record-keeping/data-gathering initiative shows that 90 percent of employers are
reporting injuries and illnesses accurately. This raises serious questions as to
why the agency is going forward with such flawed rulemaking in the first place.
On May 9, 1999, NRCA and 23 other national associations sent a letter to Jeffress
to request formally that OSHA reopen the record so additional information can be
provided and that the reopened rulemaking be subject to SBREFA, beginning with SBREFA's
Small Business Advocacy Review Panel process. On August 2, 1999, Jeffress responded
by letter and denied the requests. We were disappointed by his response. Many organizations
and people fought hard to make SBREFA the law for exactly this situation.
NRCA Response to Federal Register Notice
NRCA responded to the Feb. 2, 1996, Federal Register notice inviting written comments
on proposed (CFR Sections 1904 and 1952) Occupational Injury and Illness Recording
and Reporting Requirements. In its comments, NRCA expressed concerns that some of
the measures in the proposed rule would be cumbersome, create excessive paperwork
and would not establish a proportional increase in employee safety.
- Subcontractor records for major construction projects—This would require site-controlling
employers on construction projects with an initial contract value of more than $1
million to maintain a site-specific OSHA Injury and Illness Log and Summary (Form
300). Although subcontractors are not required specifically to maintain a site-specific
log, in reality, general contractors would have to require subcontractors to do
so to comply with this requirement. NRCA recognizes the need to track injury data
but opposes the additional paperwork burden.
- Musculoskeletal disorders—The term musculoskeletal disorders includes fractures
and sprains, which previously were recordable injuries, carpal tunnel/tarsal tunnel
syndrome and cumulative motion disorders. However, these types of injuries are considered
recordable when only two hot/cold treatments have been applied to the employee.
NRCA believes this definition is too broad and would not provide an accurate picture
of the scope of musculoskeletal disorders. In the labor-intensive roofing industry,
certain amounts of simple muscle stiffness and soreness are not unusual but under
this definition, would be recordable. To classify and record these as injuries would
dilute the information's value and create greater difficulty in determining the
nature and extent of injuries that truly are debilitating.
-
Work-relatedness—This definition in Appendix A includes "aggravating a pre-existing
condition." While NRCA believes the exemptions are a step in the right direction,
this provision could require an employer to record an injury that originally occurred
outside the employer's workplace. The motion or activity that aggravated the injury
may not represent any substantial hazard but still would be recorded.
Office of Advocacy Comments
As the subcommittee knows, the Small Business Administration's Office of Advocacy
was established by Congress to advocate the views of small business to federal agencies
drafting rules and regulations. Advocacy also is required by the Regulatory Flexibility
Act to monitor federal agency compliance with the law and now is amended and strengthened
by SBREFA. Chief Counsel for Advocacy Jere Glover raised a number of concerns about
the proposed record-keeping rule in comments submitted to OSHA on May 1, 1996. Here
is a sampling:
"This proposed rulemaking is a comprehensive document that amends record-keeping
requirements for business, changes exemption criteria, alters definitions of key
terms and subjects businesses to new mandates for releasing information … .
"The methodology for determining an employer's size seems to be changed from no
more than 10 employees at any time during the preceding calendar year to a cumulative
total of employees in the entire previous year. Industries that have a fluid workforce
(e.g., retail, restaurants, construction, etc.) would be unduly burdened if the
proposed methodology is applied.
"Specifically, the proposed rulemaking states: 'Construction employers with 10 or
fewer employees for the entire previous year [emphasis added] are exempt from the
regulations from this part 1904' … this would expand the number of employers who
would likely be subjected to the new standard … .
"Under the proposed rulemaking, an employer would be required to make available
to an employee, former employee or employee representative all OSHA Injury and Illness
Incident Records (proposed form 301). This provision would not only inflict undue
hardship on small businesses by requiring added reporting burdens, it breaches standards
for individual privacy [emphasis added]. Employees and their representatives would
have access to other workers' injury or illness records.
"The provisions in the proposed rule that apply strictly to the construction industry
would require general contractors to collect subcontractors' records. The parameters
are set at projects valued at $1 million or more and for subcontractors with 11
or more employees. General contractors and subcontractors predominantly are small
businesses. The proposed rulemaking would increase the paperwork burden for both
general contractors and subcontractors, and it is unclear what specific benefit
would be derived from this paperwork collection activity. The information is available
to OSHA, and this record keeping seems to duplicate reporting requirements.
"A major concern about this proposed record keeping is the exchange of potentially
sensitive, private information among companies that compete. While a company may
serve as a general contractor on one project, it could easily be a direct competitor
with its subcontractors on another project. Advocacy recommends dropping this provision
from the rulemaking."
Conclusion
There is a serious question as to whether OSHA has the statutory authority to propose
that employees be granted access to detailed Injury and Illness Incident Records.
Perhaps the appropriate statutory authority would be the National Labor Relations
Act. In fact, OSHA regulations now designate this as an issue for collective bargaining.
Unlimited access to employees' exposure and medical records was proposed by Sen.
Ted Kennedy (D-Mass.) and Rep. Bill Ford (D-Mich.) during the 102nd and 103rd Congresses
and rejected. The regulations currently in place provide limited but reasonable
access to the OSHA Log and Summary and Supplemental Records by Fed-OSHA and state-plan
personnel. But access by employees or their representatives is restricted for a
number of reasons including privacy.
OSHA's fixation on the idea that employers are underreporting apparently has led
the agency to ignore reporting requirements already in place under state workers'
compensation programs. Ironically, its Maine 200 program targets employers using
workers' compensation records. This and similar efforts around the country have
been trumpeted by OSHA as examples of its "reinvention" process.
Also puzzling is OSHA's proposal that subcontractors provide injury and illness
records to general contractors. A growing number of "nonperforming" general contractors
subcontract entire jobs, and general contractors often indemnify subcontractors
for OSHA citations.
With regard to vaguely defined recordable injuries in Appendix B, musculoskeletal
system "redness" is listed as criteria for recording. This is reminiscent of the
Kennedy/Ford bills, which would have required the recording of "suspected" work-related
injuries and illnesses. The recording of vaguely defined or suspected injuries only
would serve to inflate reports artificially.
Per the Regulatory Flexibility Act, OSHA has certified that the rule would not have
a significant adverse impact on a substantial number of small-business entities.
This and other assumptions made by the agency are so flawed that OSHA should begin
the rulemaking again and fulfill its requirements under SBREFA or scrap the new
rule altogether.
Pursuant to the terms of rule X, clause 2(g)(4) of the Rules of the
U.S. House of Representatives, NRCA has received the following federal grant, contract
or subcontract in the current and preceding two fiscal years: International Trade
Administration (U.S. Department of Commerce) Award Number 4036-97-8A95, Special
American Business Internship Training Program, Amount—$29,500.