March 7, 2013 Occupational Safety and Health Administration OSHA Docket Office Docket No. OSHA-2013-0023; RIN 1218-AC49 U.S. Department of Labor Room N-2625 200 Constitution Avenue NW Washington, DC 20210 Re: Proposed Rule-Improve Tracking of Workplace Injuries and Illnesses Docket No. OSHA-2013-0023; RIN 1218-AC49 78 Fed. Reg. 67254 (November 8, 2013) The National Grocers Association (NGA) takes this opportunity to submit comments on the proposed rule, Improve Tracking of Workplace Injuries and Illnesses issued by the Occupational Safety and Health Administration (OSHA) on November 7, 2013. The proposed rule would amend OSHA s current recordkeeping regulations under Part 1904 to add requirements for the electronic submission of injury and illness information by employers. NGA is the national trade association representing the retail and wholesale grocers that comprise the independent channel of the food distribution industry. An independent retailer is a privately owned or controlled food retail company operating a variety of formats. Most independent operators are serviced by wholesale distributors, while others may be partially or fully self-distributing. Some are publicly traded but with controlling shares held by the family, and others are employee owned. Independents are the true entrepreneurs of the grocery industry and dedicated to their customers, associates, and communities. NGA members include retail and wholesale grocers, state grocers associations, as well as manufacturers and service suppliers.
Summary An economic impact study, conducted by John Dunham and Associates in 2013, revealed that 20,884 grocery stores are operated by independent supermarket companies in every congressional district of the United States. Independent grocers are responsible for $131 billion in annual sales, employ 944,200 people, and pay over $30 billion in wages each year. NGA wholesalers operate hundreds of food distribution centers that are essential in supplying independent retailers with food and grocery products. An additional 569,380 jobs are created through re-spending of those wages or companies that support the supermarket industry. Independent retailers and wholesalers are committed to providing their employee associates with a safe workplace environment and complying with OSHA standards and regulations. However, independent retailers and wholesalers share the concerns of many small businesses on the costs and burdens of excessive federal regulations. The regulatory costs and burdens of the OSHA proposal are understated. NGA retailers and wholesalers will be directly impacted by OSHA s proposed rule by having make submissions of records to OSHA. NGA believes OSHA s proposal is deficient in numerous areas and fails to meet the regulatory requirements for final approval, especially in the area of the Small Business Regulatory Enforcement Fairness Act, and therefore it should be withdrawn. Furthermore, the regulatory burdens implicated by this proposed rule should not be looked at in isolation. Retailers and wholesalers are facing a plethora of costly and cumbersome federal government regulations, not only from the Department of Labor and OSHA, but also from healthcare regulations under the Affordable Care Act, food safety and labeling regulatory proposals from the Food and Drug Administration and the United States Department of Agriculture, and employment regulatory changes from the National Labor Relations Board and the Equal Employment Opportunity Commission. All of these regulatory proposals have a cumulative effect not only on retailers and wholesalers, but on the jobs of employee associates. OSHA s Proposed Rule The proposed rule would require electronic filing of reports in three instances: First, establishments with more than 250 employees in the previous calendar year (including full-time, part-time, temporary, and seasonal workers) would be required to electronically submit to OSHA on a quarterly basis all of the information from records that you keep under Part 1904. p. 67281. According to OSHA estimates, 38,000 establishments employ 250 or more workers that will be required to file injury and illness records annually and to electronically submit injury and illness case files to OSHA four times every year. This information, which includes the individual entries on the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and the data entered on each OSHA Form 301 (Injury and Illness Incident Report), would have to be filed no later than April 30, July 31, October 31, and January 31. The summary data from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) would also be required to be filed annually in an electronic format by no later than March 2 of the following year. 2
Second, establishments with 20 or more employees (including full-time, part-time, temporary and seasonal), in certain industries with designated high injury and illness rates (which includes NGA members because they operate under NAICS 42- Wholesale Trade and 4451 Grocery Stores), would be required to electronically file Form 300A, a summary of work-related injuries and illnesses, to OSHA by March 2 of the following year. OSHA estimates this would now require the 440,000 covered establishments, including retail and wholesale grocers, in the designated high-hazard industries to electronically submit information from the OSHA Form 300A once a year. Third, OSHA will require all employers who receive notification from OSHA to electronically submit specified information from their Part 1904 injury and illness records to OSHA or OSHA's designee. Importantly, OSHA plans to post for public access the establishment-specific injury and illness data online. All the information from an establishment s Form 300A (Summary Form) would be made available to the public, as would all the information on Form 300 (the Log), except for the employee s name, and on Form 301 (incident reports) all the information about the case would be disclosed, except the employee and healthcare information. Additionally, hidden in the proposal s 32 pages of the Federal Register, but not disclosed in any of OSHA s press releases, is an Alternative I that would make a substantial change in the recordkeeping from an establishment to an enterprise basis. The provision would apply to enterprises with a minimum threshold number of establishments (such as five or more) that are required to keep records under Part 1904. p. 67268. Current OSHA Injury and Illness Reporting and Recordkeeping Requirements OSHA summarizes the current reporting and recordkeeping requirements for the approximately 750,000 OSHA covered employers with 1,500,000 establishments as follows: 1. All employers covered by the OSH Act must orally report to OSHA the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident within eight (8) hours. 2. Employers with more than ten employees and whose establishments are not classified as a partially exempt industry must record work-related injuries and illnesses using OSHA Forms 300, 300A and 301. 3. Employers who are required to keep Form 300, the Injury and Illness log, must post Form 300A, the Summary of Work-Related Injuries and Illnesses, in a workplace every year from February 1 to April 30. Current and former employees, or their representatives, have the right to access injury and illness records. Employers must give the requester a copy of the relevant record(s) by the end of the next business day. 3
Currently, Forms 300 and 300A do not have to be sent to OSHA unless specifically asked to do so. Form 300 is the Log of Work Related Injuries and Illnesses employers must keep for each establishment to record an injury or illness that is considered work-related if an event or exposure in the work environment caused or contributed to the condition. The form requires the employee s name; job title; date of injury; where the event occurred; description of the injury or illness, parts of body affected, and object/substance that directly injured or made person ill. In addition, the employer must classify each case by checking a box whether it was a death, days away from work, remained at work under a job transfer or restriction, or an other recordable case; record the days away from work or on job transfer or restriction; and check a box for injury or illness-skin disorder, respiratory condition, poisoning, hearing loss or all other cases. Form 300A Summary of Work-Related Injuries and Illnesses, requires each establishment to complete and post the summary from February 1 to April 30. The form requires reports on the Number of Casesincluding total number of deaths, cases with days away from work, cases with job transfer or restriction; Number of Days-total number or days away from work and the total days of job transfer or restriction; and Injury and Illness Types-Injuries, Skin disorders, Respiratory conditions, Poisonings, Hearing Loss, and all other illnesses. In addition, the form requires establishment information: name and address, industry description, SIC or NAICS code, average number of employees and total hours worked by all employees last year, and certification by a company executive that to the entries are true, accurate and complete to the best of his or her knowledge. Form 301 Injury and Illness Incident Report must be filled out within seven calendar days after the employer receives information that a recordable work-related injury or illness occurred. This form requires the employee s full name, address, date of birth, date hired, gender, physician s name, treatment, hospitalization information, case number from the Log, date of injury or illness, time of event, and description of employee location before the incident, what happened, the injury or illness, object or substance that harmed the employee, and if the employee died, date of death. NGA Concerns and Adverse Consequences of the Proposal 1) Major Unjustifiable Change in OSHA Policy. OSHA minimizes the regulatory change that is being proposed by stating The proposed rule only modifies employers obligations to transmit information from these records to OSHA or OSHA s designee. The proposed rule represents a major shift in OSHA s current policy that acknowledges Listing a case in the Log (Form 300) does not mean the employer or worker was at fault or that an OSHA standard was violated. (OSHA Employer Guidance on OSHA Forms for Recording Work-Related Injuries and Illnesses, p. 4). Rather, OSHA now suggests Public access to this information will encourage employers to maintain and improve workplace safety/health in order to support their reputations (emphasis added) as good places to work and/or do businesses with. p. 67256. It is clear to employers the opposite, adverse consequence of OSHA s focus on public access is to have the proposed rule used to threaten the reputations of employers through the misuse of information. 4
Form 300, 300A and 301 are currently not submitted to OSHA unless requested during an inspection, or under the OSHA Data Initiative (ODI) and Survey of Occupational Injuries and Illnesses (SOII). Both Forms 300 and 301 emphasize the information must be used in a manner that protects the confidentiality of employees to the extent possible and Form 300A also limits the access to employees, former employees and their representative. NGA and other employer groups are rightly concerned about the exposure of employee and employer confidential information and OSHA s ability to maintain security of it. In addition, questions have been raised about OSHA s plans for use of the data, the potential for misrepresentation and abusive use of the data, not only by OSHA but third parties as well. Under this proposed rule, publicized injury and illness records could potentially be either mishandled or misinterpreted by activists, and that public perceptions of employers safety records would be unjustly viewed out of context. The public would not have facts behind injuries, employer safety programs, or other relevant information. Some recorded injuries and illnesses are not an employer s fault. For example, illnesses, such as heart attacks, are likely the result of natural causes, and automobile and truck accidents are examples of injuries that are recorded with no attachment to employer policies, training or commitment to safety programs. Numerical reports could be used to portray unfair conclusions. Union organizers could use the collected data to unfairly pressure companies and malign employer safety programs. NGA strongly objects to OSHA s stated purpose that members of the public will be able to make more informed decisions about current and potential places to do business with. For example, potential customers might choose to patronize only the businesses with the lowest injury/illnesses rates. Such an effort in social engineering by a government agency is not appropriate and contrary to OSHA s mission to assuring employee health and safety, especially in light of the fact that the data may not be comparable. Even though OSHA plans to exclude affected employee names from data that is made available to the public, other information such as date of injury, treatment, and job title may enable or cause identification of employees. Concerns have been raised about whether the rule hinders an individual s privacy rights under the Health Insurance Portability and Accountability Act, as well as questions on how OSHA will effectively redact the employee s identification information and prevent disclosure. 2) Increased Costs and Regulatory Burdens for Employers. OSHA substantially underestimates the costs and burdens on employers. OSHA assumes that OSHA recordkeeping is already being done electronically, even though it reports that 30 percent of its ODI report respondents for the last three years have consistently submitted data by paper. Under OSHA s proposal, calculation of the number of employees is required to take into consideration all full-time, part-time, temporary and seasonal workers in the prior calendar year. Retail grocers, like other retailers, have a high turnover rate of part-time and seasonal workers. Thus, it is likely that almost all retail grocers will have 20 or more employees in a calendar year and be affected by the rule. In the case of NGA members that would cover over 21,000 establishments. Conservatively, if the 5
30 percent were extrapolated to apply to the NGA members at least 6,300 establishments could be expected to be paper submitters. Many NGA members fall under the Small Business Size Standard of $30 million dollars in sales. The OSHA proposal has not been submitted for assessment under the Small Business Regulatory Enforcement Fairness Act s (SBREFA) regulatory requirements. As a result, OSHA has not determined the impact of requiring all employers to submit electronically, especially on those establishments that make paper submissions. In any event all 21,000 establishments would have to review, prepare and submit reports in conformance with the proposed rule. This would require employee time to review the OSHA requirements and the mockup website, which has 20 pages of instruction and screen shots, enter data, convert and submit reports. Employers are likely to have to undertake revisions to their current records, or create new recordkeeping systems if records are not in electronic format. OSHA estimates the cost of private sector compliance with the rule is $10.5 million, with the costs for an establishment with 250 or more employees at $183 per year to report, or about $26 per quarter, and about $9 per year for establishments for with 20 or more employees. NGA believes those costs estimates woefully underestimate the time and costs involved based upon today s pay for human resource and computer processing personnel, especially for employers that have to transition from paper to electronic reporting. In addition, OSHA bases the required annual reporting for establishments with 20 or more employees upon the Days Away From Work, Job Restriction, or Job Transfer (DART) rate of 2.0 or greater, which equates to two or more serious injuries and illnesses per 100 full time employees. It is important to note that OSHA uses different categories of employees for calculating DART and for establishing reporting and other requirements. In addition, OSHA illustrates the arbitrariness of OSHA current proposal versus DART rate criteria of 2.0 and 3.0 in restricting the regulatory scope and burdens when it proffers the Alternative H to narrow the scope of the reporting requirements. 3) OSHA s Limited Resources. Recent examples of the inability and failure of the federal and state governments to establish workable websites for the healthcare exchanges calls into question the ability of OSHA, with limited resources, to effectively collect and manage the reporting and recordkeeping for the 38,000 establishments with 250 employees that will be reporting four times per year and the 440,000 establishments with 20 or more employees annually. Many contend that OSHA with its limited resources will not be able to manage the tsunami of additional information, and predict that the result will be a repeat of the healthcare fiasco accompanied with information misuse. OSHA requested comment on the frequency of submissions by establishments of 250 or more employees. It is clear that monthly, and even quarterly submissions, would overwhelm the resources of OSHA. An annual submission is likely to be more manageable. It is equally true that the annual reporting by the establishments with 20 or more employees will tax OSHA resources. 6
4) Establishment versus Enterprise Submission. NGA opposes a mandate that would require companies with multiple establishments to collect and submit some Part 1904 data for those establishments, such as Form 300A (log summary). As OSHA recognizes there is no definition for enterprise in Part 1904. This alternative was not part of the proposed rule and as OSHA points out there are multiple terms that could be utilized. If OSHA were to transition from an establishment to enterprise reporting, OSHA should undertake specific rulemaking addressing it and the questions made in defining the enterprise or other applicable terms. While the Statistics of U.S. Business definition references under common ownership and control, OSHA should not carte blanche borrow or adopt that criteria without being subject to thorough comment and review. The same is true of the Equal Employment Opportunity Commission s term multi-establishment employer. Conclusion. NGA thanks OSHA for the opportunity to comment on the proposed rule that would impose new regulatory costs and burdens on independent retail grocers and wholesalers. The adverse consequences that would result from this proposed rule merits NGA s opposition and strong recommendation for its withdrawal by OSHA. NGA would be pleased to answer any questions that OSHA may have in response to these comments or in the future. Sincerely, Greg Ferrara Vice President Public Affairs National Grocers Association 7