ARTBA warns OSHA injury and illness reporting rules could unintentionally harm employers.

1. October 14, 2014
Docket No. OSHA-2013-0023
The Honorable David Michaels
Assistant Secretary of Labor
Occupational Safety and Health Administration
U.S. Department of Labor
Room N-2625
200 Constitution Ave., NW
Washington, DC 20210
Re: Comments on NPRM to “Improve Tracking of Workplace Injuries and Illnesses” (Docket No. OSHA-2013-0023)
On behalf of the more than 6,000 members of the American Road and Transportation Builders Association (ARTBA), I respectfully offer comments on the Occupational Safety and Health Administration’s (OSHA) proposed rule to “Improve Tracking of Workplace Injuries and Illnesses.”
ARTBA’s membership includes private and public sector members that are involved in the planning, designing, construction and maintenance of the nation’s roadways, bridges, ports, airports and transit systems. Our industry generates more than $380 billion annually in U.S. economic activity and sustains more than 3.3 million American jobs. The health and welfare of our workers is paramount and ARTBA has received numerous OSHA grants to develop training programs that are designed to improve workplace safety in the transportation construction industry. ARTBA has developed a diverse number of training materials including hazard communication, struck-by, fall protection, trenching and health hazards.
These comments are directly in response to a supplemental notice of proposed rulemaking on August 14 in 79 FR 157. Through that notice, OSHA is seeking comments on the following issues: 1) require employers to inform their employees of the their right to report injuries and illness; 2) require that an employer’s injury and illness reporting requirements for its employees to use be reasonable and not unduly burdensome; and 3) prohibit employers from taking adverse action against employees for reporting injuries and illnesses.
ARTBA appreciates OSHA’s efforts to ensure clear, timely and concise reporting to the agency to help protect workers from foreseeable harm and injury. Such reporting is essential to enable OSHA to understand where problems are most prevalent, and then respond in an appropriate manner to protect health and lives. ARTBA also supports OSHA efforts to inform workers about their rights to a safe and healthful workplace, and to raise legitimate safety concerns without fear of retribution.

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However, ARTBA is concerned with the levels of increased reporting and shorter reporting periods that would be required by OSHA’s proposal, which could place employers in very difficult situations when employees do not report injuries or illnesses in a timely manner. While ARTBA recognizes OSHA’s concern regarding employers who could retaliate against employees who file claims, we fear OSHA’s proposal fails to consider situations where, intentionally or unintentionally, employees fail to report accidents in a timely manner. This, in turn, could cause the employer to miss the new deadlines imposed by OSHA, thereby forcing the employer out of compliance and into potential OSHA penalties for failure to report.
Such a scenario is not unlikely in construction settings, particularly with remote heavy road, street and bridge construction where small crews labor long distances from company offices. For example, most construction workers are only on office property briefly to determine their construction schedule and attend training. In such circumstances, employees may seek treatment for reportable injuries without reporting the incident immediately to corporate supervisors. In most situations, reportable accidents happen infrequently and proper, timely reporting may not be the first thing on a manager’s mind when one of his crew is injured.
The on-site supervisor, rightly concerned with treating the injured worker, may not report back to the main office within the shorter timeframe in OSHA’s proposal. The main office, through no fault of its own, could then fall out of compliance. While this is a dramatic example of “failure to report” an employer could also face a problem where an employee becomes injured on the job, does not report the injury to the employer until days later and then accuses the employer of “failure to report.” In both situations, the employer is in a non-compliant situation through no fault of their own. ARTBA urges OSHA to provide safeguards in its final proposal which will guard against employers being penalized for actions beyond their control.
Also, ARTBA is concerned about potential confusion regarding what types of injuries OSHA will consider to be “reportable” depending on how a doctor prescribes treatment for minor injuries, e.g. over-the-counter remedies vs. prescriptions, etc. The distinction between non-reportable first aid remedies and reportable injuries often hinge on the treatment as opposed to the severity of the injury. This proposed rule further complicates that distinction and the paired reporting requirement. ARTBA urges OSHA to carefully consider a wide range of possible interpretations as to what is reportable and what is not as it promulgates additional rules to protect workers in order to avoid unintentionally harming employers.
Further, a conflict could arise under OSHA’s proposal wherein an employer could be prohibited from disciplining employees who report injuries and illnesses when the injury is a result of a violation of company safety rules (e.g. not wearing personal protective equipment such as safety glasses, hearing protection, etc.). ARTBA is concerned employees who fail to report injuries in a timely manner, as required (and enforced) by proper company rules, could seek protection under this proposed rule when, in fact, it is proper to discipline them for not following timely company reporting policies. As OSHA promulgates this proposed rule, it needs to strike a balance between proper employee protections for reporting while maintaining the ability for employers to legitimately discipline employees for safety violations.
Again, ARTBA commends OSHA for its efforts to improve the reporting and prevention of workplace injuries. Our comments are intended to ensure that if OSHA proceeds with this

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proposal, improvements are made to reflect the unique working environment experienced in the transportation construction industry and to ensure the rule strikes the proper balance between worker and employer rights and obligations. ARTBA looks forward to continuing this dialogue with OSHA and achieving a reporting system which to ensures a balance of employee rights with employer rights.
Sincerely,
T. Peter Ruane
President & C.E.O