OSHA pushes public release of safety data but industry fears 'shaming'

The U.S. Occupational Safety and Health Administration is pushing to require companies to publicly disclose much more information about factory safety, but plastics and manufacturing groups worry the ambitious plan could turn into "public shaming" with misleading data.

OSHA and its allies, including a group of 17 state attorneys general, argue that vigorous disclosure — down to specific incidents at individual factories — will shine a light on unsafe workplaces and give the public valuable new information.

The new head of OSHA, for example, recently called the current system for reporting information on workplace injuries and illnesses "pretty weak" and signaled in a speech that more disclosure is a priority. OSHA unveiled its proposal in March.

But manufacturing groups, including the Plastics Industry Association and the Flexible Packaging Association, say the proposal exceeds OSHA's legal authority and could unfairly "shame" companies by making unvetted information public.

"The OSH Act does not authorize OSHA to bypass the enforcement process through public shaming," the plastics association wrote in formal comments. "Many factors outside of an employer's control contribute to workplace accidents, and many injuries that have no bearing on an employer's safety program must be recorded."

Marie Gargas, the senior technical director of regulatory affairs at the plastics association, said public release of incident details that companies keep in OSHA logs could compromise medical privacy of injured workers and give misleading impressions about a company's safety record.

The information released could include injuries from employee misconduct like substance abuse, or incidents where a worker bends down to plug in equipment and throws out their back, the association wrote in detailed 13-page comments.

"The information collected in the OSHA 300 log is not in and of itself a reliable measure of a company's safety record," Gargas said in an interview. "The reason for that is a lot of these incidents have not been investigated by OSHA."

But the 17 state attorneys general, along with occupational safety and public interest groups, argued that more public information around specific incidents at job sites would shine a light on unsafe workplaces.

It's not the first time OSHA has pushed for more disclosure. Under President Barack Obama, the agency in 2016 made a similar proposal, but President Donald Trump reversed it. Now, President Joe Biden's new OSHA administrator, Douglas Parker, has brought it back and sees it as a key regulatory priority.

"We think that it's critically important in this age of data and information that we improve what I think is a … pretty weak system of data collection on injuries and illnesses," Parker told an American Society of Safety Professionals conference in Chicago in late June, broadcast online.

OSHA unveiled its proposal in March, broadly calling for facilities with more than 100 workers in "high-hazard industries," including plastics processing, to annually provide detailed records on specific incidents in OSHA forms 300 and 301, rather than the general summary data that OSHA requires now. The OSHA proposal would apply to all workplaces, not just manufacturing.

Some state officials and safety and public interest groups strongly support it. The state attorneys general, led by New Jersey Attorney General Matthew Platkin, told OSHA in a filing that the agency is within its legal authority to collect and release the more detailed information. Doing so would paint a clearer picture to workers and the public of how specific factories are performing, they said.

"Shielding workplace safety information from the public does a tremendous disservice to the working population of this country and to consumers," the AGs said. "Public access to workplace injury and illness data will enable job seekers to identify potential employers with good health and safety outcomes."

The attorneys general also said disclosure could benefit companies, giving them much more information to benchmark their operations against peers and target new investments in safety. And they argued it would let safety regulators in their states better target their limited enforcement resources and outreach.

The group Public Citizen said making more information public improves workplace safety, pointing to studies looking at the impact of OSHA news releases.

"The impact was so powerful that press releases led to 73 percent fewer safety violations identified during programmed inspections at neighboring enterprises and a drop in injury reports from the same enterprises," the group said. "Negative publicity has been shown to improve not just the behavior of the highlighted employer but also other employers."

Without a large increase in OSHA's budget, data disclosure can be a good tool to make workplaces safer, it argued. Based on the number of OSHA inspectors in 2018, it said it would take the agency 165 years to visit every job site.

"The accessibility of establishment-specific data to potential lenders, investors, consumers, media and the general public would shine a spotlight on hazardous workplaces," Public Citizen said.

But the group also urged OSHA to rethink some provisions of its proposal, like exempting companies with more than 250 employees in "low hazard" industries from reporting. In its proposal, OSHA proposed that the new reporting requirement apply to "high hazard" industries having an OSHA recordables case rate above 3.5 per 100 employees in 2017, 2018 and 2019, as measured by four-digit codes under the North American Industrial Classification System.

The plastics processing industry, as NAICS code 3261, appears to be right on that line. It had a rate of 4.0 in 2017, 3.8 in 2018 and 3.6 in 2019. In 2020, however, plastics processors dropped to an injury rate of 3.5 per 100 workers.

The rate varies a lot within smaller parts of the plastics sector, however. For plastics plumbing fixtures, the rate in 2020 was 5.9; for laminated shapes, it was 4.1; and for both plastics pipe and a general catch-all category of products, it was 3.7. For other sectors, though, it was less. Plastic packaging and bottle making each had rates of 3.0.

One worker safety organization that backs OSHA's proposal, the National Council for Occupational Safety and Health, said the 3.5 cutoff rate proposed by OSHA is too high. It said that level would mistakenly exempt industries like motor vehicle parts manufacturing that are below it but still have serious hazards.

It also said that OSHA's proposal would not require companies to collect new information.

"This proposal does not contain any new record-keeping requirements; it simply requires employers to electronically send information they already keep to OSHA," NCOSH wrote. "It is hard to believe that the agency in charge of workplace safety and health does not already receive this information."

Various manufacturing groups argued there are major administrative and privacy concerns, as well as the potential for the information to be seen out of context and harm company reputation.

The Plastics Industry Association, for example, said companies have provided information to OSHA under a "no fault" reporting system since 2001, which they said was backed by unions at the time as a way to encourage reporting of incidents. It said the incidents detailed on the OSHA 300 forms have not been investigated by the agency to see if the company is at fault.

"The information collected through the OSHA 300 system, as a no-fault system, is not a reliable measure of an employer's safety record," it said. "Although the employer may bear no responsibility or fault for the incidents, they would be publicized in a way that places the employer in an adverse light without any meaningful context or appropriate disclaimers."

The association also raised concerns, shared by other industry groups, that OSHA may lack the technical expertise to filter information to make sure private medical information is not posted publicly.

Gargas called the privacy concerns a "really difficult" issue.

"OSHA is talking about being able to redact personally identifiable medical information," she said. "There are concerns OSHA doesn't have a system and software set up to do this.

"We're not convinced that information could be adequately protected if, for example, an employee at a company is uploading information and inadvertently includes some personally identifiable information," she said.

The Flexible Packaging Association in Annapolis, Md., said it was concerned that the proposal would require OSHA to make "significant technological improvements … which it does not yet seem to have initiated."

"OSHA offers no proof of its ability to protect this information when it is mistakenly provided by the employer," FPA said.

It also noted concerns that many of the cases reported on the OSHA logs "are not, at their core, work-related" and include situations such as an employee with a bad knee twisting it while walking at work and requiring surgery.

Other companies and groups, including Dow Inc., the Louisiana Chemical Association and the Motor & Equipment Manufacturers Association, which represents auto parts makers, submitted comments ahead of OSHA's June 30 deadline, questioning the plan. The National Association of Manufacturers echoed concerns about "reputational harm" companies could suffer because the public would see them as "at fault."

"This newly available data immediately puts employers, manufacturers in particular, in a defensive posture whereby compliance … adds unintended risks to company reputation," NAM said. "Prematurely publishing sensitive establishment data would damage those companies who are improving their safety programs, leaving smaller businesses the most vulnerable."