OSHA has temporarily suspended federal inspection activity focused on employer under-recording and is now seeking additional targeting criteria, amid reports from sources that the agency has not found significant problems through a pilot enforcement program targeting the issue. OSHA sources and other stakeholders told Inside OSHA that the agency has not found the number or degree of violations it had expected to uncover through the program.
OSHA has temporarily suspended federal inspection activity focused on employer under-recording and is now seeking additional targeting criteria, amid reports from sources that the agency has not found significant problems through a pilot enforcement program targeting the issue. OSHA sources and other stakeholders told Inside OSHA that the agency has not found the number or degree of violations it had expected to uncover through the program.
A memorandum was issued on July 27 outlining the agency's plan to halt programmed inspections under the OSHA recordkeeping National Emphasis Program (NEP), according to sources. An OSHA spokesman confirmed that the agency has temporarily suspended the recordkeeping NEP. "OSHA is re-evaluating the targeting criteria for selecting establishments to be inspected under the NEP," he said. "No new inspections are to be initiated under the program until alternative target criteria have been established." He added that inspections that have already been initiated will be completed.
Stakeholders offered a number of reasons why the agency may not be finding issues, including the possibility that the scope of the pilot program needs to change or that there are deficiencies in the NEP's methodology. Nevertheless, a source said the results may have prompted OSHA to back off of the issue for the time being.
The OSHA spokesman said the agency opted to put the program on hold because OSHA "felt it was time to implement a different approach for targeted inspections," he said. "OSHA has several strategies for targeting that it's planning to work through to determine which gets at its concerns on recordkeeping."
Sources say agency staff found limited numbers of significant hazards under the pilot NEP based on initial findings which emerged a couple of months ago.
A source said he heard early on that OSHA inspectors weren't finding the level of violations the agency had expected. The program's compliance directive states that the agency "postulates the most likely places where under-recorded injuries and illnesses may exist would be low rate establishments operating in historically high rate industries."
An OSHA source said early inspections generally didn't find employers deliberately flouting OSHA's recordkeeping rule, "which is what OSHA is looking for with the bad actors." Nevertheless, the source noted that some issues have been found through the recordkeeping inspections. However, the source was not aware of any "smoking guns," such as an employer actively not recording injuries to keep the company's Days Away, Restrictions and Transfers (DART) rate down.
Additionally, an OSHA inspector also recently said that, in his experience, compliance officers haven't found a significant number of recordkeeping issues under the program.
Some stakeholders say the program's scope and methodology may have contributed to OSHA's reported inability to find significant underreporting problems through the program. A safety and health expert said he thinks there could be a variety of reasons that OSHA has not found significant issues, such as an outdated audit methodology.
He noted that there are challenges with the existing system, as many workplaces don't have personal medical information available on-site which causes that data to get ignored in lieu of employee interviews. However, there can be problems with solely relying on employee interviews in certain work environments, he added. "If you think about it, the only way you can fundamentally audit the records is to get access to personal medical information," he said. "If OSHA's not doing that on a systematic basis, then I'm not surprised that they're not finding many problems."
The source noted that he finds it hard to believe that there is not significant underreporting in some sectors. He added that he is in favor of OSHA taking a hard look at its methodology for conducting audits under the NEP. "Inspectors have been around long enough to know there are problems, but it's like grabbing Jell-O," he said.
Additionally, he said he thinks the overall OSHA recordkeeping system badly needs to be assessed and overhauled, as the agency relies on it significantly to target, for standards development and to measure its own performance.
Furthermore, a former OSHA official said she was skeptical that the agency would find many problematic employers through the NEP, given the way OSHA laid out the program. She noted that the NEP had a very narrow scope and targeted egregious violators of the recordkeeping standard. "You're looking for the needle in the haystack," she said.
The source added that by looking mainly for egregious cases, which are rare, it's difficult for inspections under the NEP to provide significant findings. She suggested that sites inspected under the program should be chosen in a more random fashion.
An industry attorney said he hadn't expected OSHA to find systemic and egregious underreporting through the NEP. Baruch Fellner, a partner with Gibson, Dunn & Crutcher, said OSHA's action to suspend the program and alter its targeting scheme shows that the agency has been engaged in a "wild goose chase," despite the administration's emphasis on the problem. He said OSHA's limited resources could be better used by targeting a specific hazard, such as fall protection.
Fellner added that if OSHA does not subsequently choose its targets through an objective administrative scheme, then the new iteration of such an inspection program could be legally vulnerable. Therefore, he asserted that OSHA needs to be careful in its assessment process.
He noted that he would like to see OSHA provide a report on its inspections under the program, given that the agency has trumpeted systemic under-reporting as a rampant problem. Furthermore, he called for OSHA to make the findings public because Congress provided a special expenditure to conduct the inspections.
The enforcement program is highlighted in appropriations committee report language for the fiscal 2010 and 2011 OSHA budgets. Senate appropriations committee report language for the fiscal 2011 budget, released July 29, calls for funds to continue to be allocated to the NEP. "The Committee intends for this effort to enable OSHA to review the completeness and accuracy of individual employers' injury and illness records and determine whether there are employer policies or practices in place that cause incomplete reporting of injuries and illnesses by employers," the Senate fiscal 2011 labor appropriations report language states.
The House appropriations committee has yet to release its report for fiscal 2011, but highlighted the effort in its last report. -- Sara Ditta