Update (April 4, 12:45 p.m.): It’s official. Another loss for America’s workers. Yesterday President Trump put the finishing touches on congressional efforts to overturn a decades-long and critical element of protecting our nation’s workforce. He signed the resolution that now permanently removes the ability of the Occupational Safety and Health Administration (OSHA) to cite employers with a pattern of record keeping violations related to workplace injuries and illnesses. Yes, permanently, because it was passed under the Congressional Review Act. This action is a gift to unscrupulous employers and a true blow to worker safety and health.
Update (March 22, 6:20 p.m.): Senate votes. Workers lose. On a straight party line vote, the Senate just repealed OSHA’s rule clarifying an employer’s obligation to maintain accurate records of serious injuries. According to the Congressional Review Act, the rule is now and forever gone unless Congress tells the agency to write it again–and there is fat chance of that happening anytime soon. This is a sad day for U.S. workers; another safeguard gone.
Let’s say someone you care about—mother, father, wife, husband, partner, son, daughter, friend, and neighbor—works in a facility that’s had a history of serious injuries or illnesses. You know, like burns, amputations, and broken bones that happen at work. Or head, eye, or back injuries. Or problems that send workers to emergency rooms, clinics, or doctors with breathing difficulties, skin damage, or other health issues related to chemical exposures or other dangerous conditions at work.
For over 40 years, larger employers in high-hazard industries have been required to keep accurate records of these types of serious, disabling events—and to maintain those records for five years. These records are vital to understanding the extent and nature of serious workplace injuries and illnesses in our nation’s larger workplaces—and PREVENTING THEM.
The Occupational Safety and Health Administration (OSHA) uses these records to allocate its meager resources for inspection, enforcement, and assisting employers with compliance. Employers, unions, and workers use these records to identify dangerous conditions and take steps to fix them. The Department of Labor uses these records to publish statistics on occupational injury and illness rates, which are important data sources for researchers and professionals who study or advise on occupational safety and health.
Because these injury and illness records are so integral to safety and health at work, OSHA can cite and fine employers when they falsify, under-report, or otherwise keep inaccurate records to evade an inspection and/or avoid making the investments needed to improve workplace safety and health conditions. And there is clear evidence that stiff record keeping fines have stimulated improvements in safety programs and conditions—sometimes extending well beyond the particular workplace to an industry writ large.
In 2012, a court decision overturned four decades of precedent and made it impossible for OSHA to enforce against record keeping violations in dangerous industries if the violations are more than six months old. Essentially, this decision held employers harmless for failing to keep accurate records of serious injuries and illnesses that happened outside a six-month window—or over a period that would reveal patterns of record-keeping violations. It would also put additional onus on OSHA, with its limited budget and inspection resources, to catch poor record keeping within six months.
One of the three judges involved in the decision indicated that OSHA could cite continuing violations of its record keeping rule if it clarified the rule. Which it did in December 2016—clarifying that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. You can see more here.
This clarification was critical, as these records save lives and prevent serious and sometimes permanent disability. Hard as it is to believe, job hazards kill over 4,800 workers a year and seriously injure another 3 million—in America! These are our loved ones, our family bread winners, engines of our economy. You know, the ones that make America great.
This Worker Protection Is on the Chopping Block—NOW
Perhaps you’ve been following how our Congress is wielding a rarely used statute to overturn recently enacted regulations that that don’t comport with their ideological and partisan preferences—even if those rules emerged after years of study, stakeholder and public input, and a rigorous rule-making process. We’ve written about how Congress is using this statute, the Congressional Review Act (CRA), here and here.
Next week, we can expect the Senate to follow the House of Representatives in using the Congressional Review Act to overturn this important worker protection. They will use familiar corporate and industry arguments. It’s burdensome paperwork, it’s costly, it’s a job killer.
The Problem Is Killer Jobs, Not Job Killers
Actually, it’s not an overstatement to say that overturning this record keeping rule endangers workers and could itself be a killer. This week 75 civil society organizations called on the Senate to oppose any attempt to invoke the Congressional Review Act and repeal this rule (see letter here).
Protecting our nation’s workforce is not a partisan issue. And powerful regulated industries seeking to pad their bottom line should not be the predominant voice when it comes to public protections—including workplace safety. If this president and this Congress say they stand with America’s workers, then it’s time to give meaning to those words.
So please—pick up the phone and call your senators this week urging them to oppose this Congressional Review Act (CRA) resolution (H.J.Res 83 – S.J. Res 27). It’s not just record keeping. It’s the safety and health of our loved ones.