Occupational Safety and Health: Efforts to Obtain Establishment-Specific Data on Injuries and Illnesses
Released: 1998-05-29T00:00:00

Letter

Background

The Occupational Safety and Health Act of 1970 covers more than 100 million working men and women and about 6.5 million employers.Excluded from coverage are the self-employed; state and local government employees in some states; and some transportation workers, miners, and others covered by other federal laws.

OSHA regulations require most employers covered by the act to keep records at each establishment, including a log and summary of occupational injuries and illnesses (OSHA form 200 or an equivalent form) and a supplementary record of occupational injuries and illnesses (OSHA form 101 or an equivalent form). On the log, employers must briefly describe all occupational injuries and illnesses that occur at the establishment and summarize that information yearly. Employers must make the log accessible to authorized federal and state officials and to employees upon request and post an annual summary of occupational injuries and illnesses for the previous calendar year at each establishment. The supplementary record is to provide information about each injury and illness on the log, such as the affected employee’s name and the circumstances of the injury or illness. Authorized government officials must have access to these records also.

The records employers must keep provide useful information for (1) employers and employees, raising their awareness of injuries and illnesses and helping them in their efforts to address establishment hazards; (2) OSHA staff for carrying out enforcement and outreach programs; and (3) statistical purposes, by measuring the magnitude of injury and illness problems nationwide. The information also helps OSHA develop safety and health standards and conduct research on the causes and prevention of such injuries and illnesses. In addition, BLS collects injury and illness data from employers for its annual survey of occupational injuries and illnesses. OSHA’s compliance officers review and collect data from the records during on-site inspections.

In February 1996, as part of its initiative to enhance safety, reduce paperwork, and reinvent the agency, OSHA proposed comprehensively revising the current rule for record-keeping requirements. The overall rule addressed certifying the records’ accuracy and completeness, requiring employers to provide increased access to the records, defining key terms, and updating records to reflect changes in previously recorded data.

The proposed rule would also create a system for OSHA to collect injury and illness data at the establishment level. Under the proposed data collection system, OSHA would (1) identify industries among the most hazardous based on their injury and illness rates as reported by the BLS annual survey of occupational injuries and illnesses and (2) survey establishments in these industries to collect establishment-specific injury and illness data. Establishment-specific data would help identify individual establishments with high rates of occupational injuries and illnesses.

OSHA said it would focus its enforcement and outreach efforts on establishments with the highest injury and illness rates. Its inspection priority system would remain unchanged—highest priority would still be given to unscheduled inspections—but its process for scheduling programmed inspections would be based on these establishment-specific data. In addition, OSHA said the data collection system would enhance the agency’s ability to measure its performance in achieving established goals for reducing injuries, illnesses, and fatalities.

Although the proposed overall rule to revise the record-keeping and reporting requirements had not been completed, in February 1996, OSHA initiated its survey of employers to collect injury and illness data for calendar year 1995. In March 1996, the American Trucking Associations and others filed a lawsuit challenging OSHA’s authority to compel employers to participate in this survey in the absence of a final rule. A federal district court ruled that OSHA did not have the authority to issue citations to employers who did not complete and return the survey. In February 1997, OSHA issued a final rule implementing its authority to survey employers and cite them for failing to respond. Also in February 1997, OSHA and the parties involved in the lawsuit agreed that OSHA would not use the survey data collected in 1996 for enforcement purposes, but it could use the data for other purposes.

OSHA Considered Industrywide Injury and Illness Data and Establishment Size in Designing Its Data Collection Surveys

OSHA used a two-stage process for selecting industries and establishments to include in its data collection surveys. First, OSHA selected the industries for its surveys using mainly industrywide data on injuries and illnesses. Second, within the industries selected, OSHA chose individual establishments to survey on the basis of establishment size. OSHA’s objective was to survey all establishments of a specific size in the industries with the highest injury and illness rates. OSHA said a major determinant of the number of establishments it could survey in a year, however, was the amount of funds available for conducting the survey. With about $2.6 million available annually to fund the surveys in 1996, 1997, and 1998, OSHA determined it could survey up to 80,000 establishments each year.

Selection of Industries

To select the industries among the most hazardous, OSHA used data obtained from BLS’ annual surveys together with other factors such as work-related fatalities and the number of establishments most likely to be included in the survey in each industry. Because data and documentation supporting these decisions were not available, however, we could not assess the extent to which each factor contributed to OSHA’s selecting—or excluding—an industry.

According to OSHA officials, the agency decided to include in its first three surveys all manufacturing and nonmanufacturing industries considered most likely to be hazardous for which it has responsibility. OSHA officials said it included all manufacturing industries because (1) manufacturing industries are required to maintain OSHA injury and illness records, (2) OSHA compliance standards to a large extent focus on manufacturing industries, (3) some manufacturing industries have injury and illness rates that are among the highest in all the SIC codes, and (4) the large number of manufacturing SIC codes (and the large number of establishments in each manufacturing group) made it impractical to separate high-hazard manufacturing industries from low-hazard manufacturing industries for the surveys.

According to OSHA, the main factor it used to identify nonmanufacturing industries most likely to be hazardous was the industry three-digit SIC code LWDII rate as reported by BLS. OSHA also considered work-related fatalities when selecting industries to survey. Other factors OSHA considered in its selection process for those years included whether the injuries reported by establishments occurred at a fixed facility or at an off-site location and the number of establishments in each industry that would most likely be included in the surveys.

1996 and 1997 Surveys

For the 1996 and 1997 surveys, OSHA chose all manufacturing industries, six industry groups (three-digit SIC codes), and eight specific industries (four-digit SIC codes) in nonmanufacturing SIC codes. The nonmanufacturing industries selected had high LWDII and injury and illness incidence rates at the three-digit SIC code level, according to calendar year 1993 BLS data. Four of the specific industries and one industry group that OSHA selected, according to the agency, also had high numbers of fatalities during the previous 10 years. (See fig. 1.)

As shown in figure 1, all 14 nonmanufacturing industry groups and specific industries OSHA selected in 1996 and 1997 had LWDII rates and injury and illness incidence rates that exceeded the national averages for all industries. Furthermore, most industries selected were among those with the highest LWDII rates. Because data were not available, however, we could not assess the extent to which each factor contributed to OSHA’s selecting or excluding industries.

1998 Survey

OSHA expanded the 1998 survey to include additional industries in the survey database. According to OSHA, it included all manufacturing industries and the 14 nonmanufacturing industry groups or specific industries in the previous surveys again. It replaced four specific industries on the survey list with the three industry groups of which the specific industries are a part. OSHA also included three industry groups in 1998 that were not in the previous surveys. As a result, for 1998, OSHA selected a total of 16 nonmanufacturing industry groups or specific industries for the survey. According to OSHA, it based selections for the 1998 survey exclusively on calendar year 1995 injury and illness data obtained from BLS; fatalities and other safety and health factors were not considered. Each of the newly selected industry groups included in OSHA’s 1998 survey had LWDII and injury and illness incidence rates that exceeded the national averages for all industries. (See fig. 1.)

Selection of Establishments

OSHA selected establishments to survey for all 3 years from within each of the chosen industries on the basis of establishment size. OSHA officials said they did this to include in the surveys all establishments of certain sizes in each of the industries selected, rather than survey a sample of establishments in these industries. For the 1996 and 1997 surveys, OSHA mailed surveys to all establishments with 60 or more employees in manufacturing industries and in each of the 14 selected nonmanufacturing industries. For the 1998 survey, OSHA mailed survey forms in March 1998 to all establishments in the newly selected industries with 50 or more employees. It also mailed forms to some of the establishments included in the 1997 survey: (1) those that did not return their forms, (2) the largest establishments in each state, and (3) those that had reported an LWDII rate of 7.0 or higher.

Establishments Already Compile Injury and Illness Data That OSHA Collects

For its 1996, 1997, and 1998 surveys, OSHA asked employers to provide summary information on their employees’ injuries and illnesses during the previous calendar year. Because OSHA already requires the establishments to compile this information, employers are not required to develop new data sets. OSHA also asked employers to provide certain employment information for the establishments.

Although OSHA and BLS collect the same injury and illness and employment data from establishments that participate in their respective programs, BLS collects the data from a small sample (less than 3 percent) of all private- sector industry establishments and uses the information to generate aggregate statistics on occupational injuries and illnesses at the state and national levels. Because BLS pledges confidentiality of the data to employers, it does not share these data with OSHA. OSHA, on the other hand, needs establishment-specific data to identify individual establishments’ LWDII rates and injury and illness incidence rates to more effectively and efficiently carry out its regulatory and enforcement activities. Because it cannot obtain these data from BLS and they are otherwise unavailable, OSHA collects injury and illness data from all establishments of a certain size within selected industries.

The OSHA data collection survey form is identical to a portion of the BLS annual survey of occupational injuries and illnesses form. The wording of the instructions, examples, and questions on the OSHA survey form is identical to that on the BLS survey form. In addition to the injury and illness and employment data, both data collection forms ask for the name, telephone number, date, and signature of the person to contact if any questions arise about the information provided. This contact information also allows OSHA and BLS to verify the data provided. BLS also collects information that OSHA does not on the demographics of injured and ill workers and the circumstances of the injuries and illnesses for a sample of cases that required recuperation away from work.

To minimize employers’ burden, OSHA and BLS instruct employers responding to their surveys to copy on their survey forms the requested injury and illness data from the log and summary of occupational injuries and illnesses they are required to maintain. In addition, because some establishments from which OSHA collects data may be included in the BLS sample in a given year, OSHA has coordinated its data collection effort with BLS’. (BLS estimated that less than 10 percent of the establishments selected for the OSHA data collection effort would be included in the BLS sample in any year.) Establishments required to report to OSHA and BLS may use a single form and send a copy to each agency.

The data collection form includes a section in which the respondent can provide summary information specific to the selected establishment. The first part of the summary section requests the average annual number of employees and the total number of hours that employees worked during the previous calendar year. It also requests information on conditions during the year, such as a strike or a shutdown, that might have affected the number of employees or the hours they worked.

The second part of the form requests the following information from the total line of the log and summary of occupational injuries and illnesses maintained by each establishment: total injuries, including the number of deaths as a result of injury, injuries with days away from work or restricted workdays or both, total days away from work, total days of restricted work activity, and injuries without lost workdays; total illnesses, including deaths as a result of illness, illnesses with days away from work or restricted workdays or both, total days away from work, total days of restricted work activity, and illnesses without lost workdays; and types of illnesses experienced by the workers, including skin diseases or disorders, diseases of the lungs due to dust, respiratory conditions due to toxic agents, poisonings, disorders due to physical agents, disorders associated with repeated trauma, and other occupational illnesses.

The information collected enables OSHA to compute each establishment’s LWDII rate and injury and illness incidence rate. See the appendix for a copy of the OSHA data collection form.

OSHA Plans to Use Establishment- Specific Data in Various Ways, but So Far Use Has Been Limited

OSHA, in announcing its plans to collect establishment-specific injury and illness data by mail, indicated that such information would be used in a variety of ways to help OSHA carry out its responsibilities more efficiently and effectively. The intended uses were (1) directing OSHA’s program activities, including the scheduling of establishment inspections under its enforcement program and the targeting of mailings of safety and health information to employers under its nonenforcement programs; (2) monitoring and tracking injury and illness incidents; (3) developing information for promulgating, revising, and evaluating OSHA’s safety and health standards; (4) evaluating the effectiveness of OSHA’s enforcement, training, and voluntary programs; and (5) providing pertinent information to the public. In addition, OSHA stated that the establishment-specific data were necessary for it to meet GPRA requirements, which direct federal agencies to implement a program of strategic planning, develop systematic measures of performance to assess the impact of individual government programs, and produce annual performance reports.

Although OSHA collected establishment-specific injury and illness data during 1996 and 1997, as of April 1998, it had made only limited use of the data. None of the intended purposes has been fully implemented, and the data have not been used for other purposes. About 70,000 establishments responded to both the 1996 and 1997 surveys—about 88 percent of the establishments surveyed.

According to OSHA officials, firm plans for using the data involve enforcement activities and meeting performance goals it established under GPRA. The data will be used as part of Labor’s performance measurement system to track the impact of OSHA’s enforcement and compliance assistance interventions. For example, to measure the extent to which OSHA achieves its goal of reducing injuries and illnesses by 15 percent in high-hazard industries, such as food processing and logging, the agency will track survey data from employers in these industries.

According to OSHA’s directive (CPL 2-0.119), the agency also plans to use survey data to schedule enforcement activities for establishments with the highest LWDII rates. OSHA will use the data to identify the 500 establishments with the highest rates and schedule them for on-site inspections. In addition, OSHA wants to use the establishment-specific injury and illness data to identify employers for participation in its new Cooperative Compliance Program (CCP). Under this program, OSHA would invite employers who report high LWDII rates on the survey to work cooperatively with OSHA to eliminate the hazardous working conditions. These employers would be put on a list of those most likely to be inspected; however, if these employers agree to participate, they must agree to establish an effective safety and health program. They must also agree to (1) find and remove hazards, (2) work toward reducing injuries and illnesses, (3) fully involve employees in their safety and health program, (4) share injury and illness data, and (5) provide OSHA with information from their annual injury and illness records. Under CCP, employers with 100 or fewer employees who choose to participate and agree to seek free assistance from their state OSHA consultation program to establish effective safety and health programs reduce their likelihood of being inspected by OSHA to 10 percent. CCP participants with more than 100 employees and smaller employers not using consultation services face a 30-percent chance of being inspected. If identified employers do not agree to participate in the program, they will remain on OSHA’s list for on-site inspection.

According to OSHA officials, inspections of CCP participants will most likely be shorter than regular inspections and result in lower penalties than normal because of these employers’ commitment to finding and eliminating hazardous working conditions in their establishments. OSHA believes that those who successfully fulfill the requirements of the program should reduce injuries, illnesses, and fatalities, leading to lower workers’ compensation costs and reduced insurance costs. In addition, workers whose employers join the program will be more involved in establishment safety and health issues and should experience fewer injuries and illnesses and have an improved quality of work life. OSHA will also benefit by extending its resources and expanding the base of employers with safety and health programs, which OSHA believes is a major difference between employers with low injury rates and those with high rates.

OSHA used the information it collected in 1997 to develop a list of about 12,500 establishments with the highest LWDII rates—that is, LWDII rates of 7.0 or higher. OSHA scheduled the 500 establishments with the highest LWDII rates for inspection and began these inspections in December 1997. In November 1997, OSHA invited about 12,000 of these establishments—less than 20 percent of those that responded—to participate in the CCP. According to OSHA officials, more than 89 percent of the employers invited by OSHA agreed to participate in the program. In response to a lawsuit filed by the U.S. Chamber of Commerce and others claiming that OSHA had not followed proper procedures in implementing the CCP, however, a federal court of appeals ordered OSHA in February 1998 to halt the enforcement program that includes CCP until the court decides whether the program is valid. According to OSHA officials, oral argument is scheduled for December 1998, and a decision is unlikely to be issued until some time in 1999. The order also required OSHA to stop conducting its inspections of the 500 establishments with the highest LWDII rates; 89 of these inspections had been completed when OSHA was told to stop conducting them. OSHA officials stated that this delay in implementing the CCP will adversely affect many of its enforcement and nonenforcement activities.

In April 1998, OSHA began implementing an interim inspection scheduling plan. Under the plan, OSHA will schedule for inspection establishments in 99 industries with LWDII rates of 6.4 or higher, according to calendar year 1996 BLS data. Establishments in these industries for which OSHA collected data in 1997 with LWDII rates at or above the national average of the industry of which they are a part will be randomly selected for inspection. The interim inspection plan has no CCP component.

In our 1994 report, we noted that one problem with relying on employer- provided data is the risk that employers may underreport injuries and illnesses if they know OSHA is collecting data about their establishments that could be used to target them for on-site compliance inspections. To reduce the risk of employers underreporting injury and illness data, OSHA needs to have a successful combination of enforcement and education. Therefore, we recommended in that report that OSHA implement procedures for ensuring that employers accurately record occupational injuries and illnesses. Because of its concerns about the quality of the data provided by employers responding to its surveys, OSHA is conducting on-site audits of employers’ injury and illness records to assess these records’ accuracy. OSHA has completed all of the 250 records audits it had planned to conduct.

OSHA Gave Employers No Assurance of Confidentiality as Part of the Data Collection Initiative

OSHA gave no assurances about privacy rights or confidentiality associated with the data collected from employers selected to participate in the data collection survey. Privacy rights of individual employees did not present a problem because the only information about workers that OSHA collected was summary information on injuries and illnesses, which does not identify individual workers. OSHA said it took steps to protect employers’ privacy rights and to maintain confidentiality of the information. OSHA did not pledge to employers that the data it collected in its surveys would be kept confidential, however, because the data could be subject to disclosure under FOIA. According to OSHA, this information would be made available to the public only in response to specific FOIA requests. The injury and illness data OSHA collected, however, are the same data that employers are required to post in their establishments each year.

In contrast with OSHA, BLS pledges confidentiality to the full extent permitted by law to all participating establishments and informs the respondents that the data will be used for statistical purposes only. BLS tabulates and publishes data aggregated at the national and state levels by various characteristics, such as industry group, occupation, and age. BLS does not tabulate or publish injury and illness data on individual establishments. Over the years, BLS has received FOIA requests for the data, including requests for establishment-specific injury and illness data but has refused to disclose the data, relying on the FOIA exemption for confidential commercial or financial information. A federal district court has upheld BLS’ right to withhold from disclosure commercial or financial information that has been voluntarily provided to BLS under a pledge of confidentiality in large part because disclosure would impair the government’s ability to obtain the data in the future. Whether OSHA would have a valid basis to rely on the same exemption has not been determined.

FOIA Requires Disclosure of Agency Records With Some Exceptions

Under FOIA, a federal department or agency is required to disclose information to anyone who requests it, unless the information is covered by one of the law’s exemptions. Examples of such exemptions include trade secrets and individuals’ medical files. The medical files exemption excludes from disclosure any data from establishments that identify individual employees’ injuries and illnesses. Another exemption excludes information compiled for law enforcement purposes that would disclose techniques, procedures, or guidelines for law enforcement investigations. This exemption excludes from mandatory disclosure any data that might provide advance notice of an inspection. According to OSHA, it does not disclose collected establishment-specific data while such data are being used for scheduling inspections that might disclose the scheduling criteria. After the inspection is completed, however, the exemption no longer applies and the data may be subject to disclosure, OSHA officials said.

OSHA Has Received and Responded to Many FOIA Requests

From 1996 to 1998, OSHA received many FOIA requests about the data collection initiative. Many of these requests specifically related to requests about the CCP. The only establishments asked to participate in the CCP were those that responded to the data collection initiative, but, as already noted, implementation of the CCP has been postponed because of a lawsuit.

Labor agencies handle all FOIA requests on a case-by-case basis. Most of the requests OSHA has received and responded to about the data initiative asked for the names and addresses of establishments identified as having LWDII rates high enough to be invited to participate in the CCP. OSHA has provided these requesters with the names and addresses of the establishments only. OSHA has also provided its field offices with the names and addresses of establishments in their regions to enable staff there to respond to similar requests. OSHA received one FOIA request for injury and illness data collected in the 1996 survey. As of April 1998, however, the agency had not released the requested information.

OSHA does not know the number of FOIA requests received by its headquarters and field offices about the data collection initiative. Labor is not required to and does not collect data on the specific subjects of FOIA requests. In addition, although federal agencies and departments must annually report to the Department of Justice on the number and cost of FOIA requests and responses, detailed information on the subjects of FOIA requests is not required. Moreover, although Labor has a national FOIA coordinator, it does not centrally track all FOIA requests received. FOIA requests concerning establishments identified by the data collection initiative are decentralized: they may be responded to by OSHA headquarters, regional, or area office staff. OSHA headquarters officials told us that generally they neither oversee nor approve FOIA responses handled by OSHA regional and area staff; nor are they informed of all FOIA requests received in the field. According to OSHA officials, however, area, regional, and national staff responsible for FOIA activities may coordinate efforts when preparing FOIA responses.

Agency Comments

We provided a draft of this report to the Department of Labor for its review and comment. Although Labor did not provide written comments on the draft report, officials from OSHA and other offices provided technical comments, which we have incorporated as appropriate.

As arranged with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 7 days after its issue date. At that time, we will send copies of this report to the Secretary of Labor and other interested parties. We will make copies available to others upon request.

If you or your staff have any questions about this report, please call me at (202) 512-7014 or Larry Horinko, Assistant Director, at (202) 512-7001.

Other major contributors to this report are John T. Carney, Evaluator- in-Charge; Ronni Schwartz, Senior Evaluator; and Robert G. Crystal, Assistant General Counsel.

OSHA’s Occupational Injury and Illness Data Collection Form

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