Labor & Employment Law Daily New lawsuit challenges OSHA’s electronic reporting rule rollback
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Wednesday, January 30, 2019

New lawsuit challenges OSHA’s electronic reporting rule rollback

By Pamela Wolf, J.D.

Interested stakeholders challenge OSHA’s final rule rescinding certain electronic reporting requirements of Obama-era rule.

Public Citizen’s Health Research Group, the American Public Health Association, and the Council of State and Territorial Epidemiologists (collectively, health organizations) are suing the Department of Labor and OSHA, asking a federal district court in the District of Columbia to overturn the Trump Administration’s rollback of reporting requirements in the Obama-era’s previous electronic reporting rule.

Obama-era rule. Under that May 2016 final rule, certain businesses with 250 or more employees and employers in high-risk industries with 20 or more employees were required to electronically submit workplace injury and illness records to OSHA. The data that would have been supplied by the rule is crucial to protecting worker health and safety and facilitating independent research into workplace hazards, according to the health organizations.

Improving agency effectiveness. As the complaint notes, in its rulemaking, OSHA had explained that “[w]ith the information obtained through this final rule, employers, employees, employee representatives, the government, and researchers may be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses.”

The agency expected that the changes would help encourage employers to prevent worker injuries and illnesses “by greatly expanding that OSHA’s access to the establishment-specific information employers are already required to record under part 1904.” The information was expected to help OSHA “use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk.”

For 2016 injury and illness records, the electronic reporting rule required covered establishments to electronically submit their 2016 summary Form 300As to OSHA by July 1, 2017. For 2017 injury and illness records, the rule required covered establishments to submit electronically to OSHA information from OSHA forms 300, 301, and 300A by July 1, 2018. Beginning in 2019 and every year thereafter, covered establishments were required to submit the information on all three OSHA forms by March 2.

Data posting. When OSHA published the 2016 electronic reporting rule, the agency explained that the data that must be submitted electronically would not include personally identifiable information and would, in any event, be subject to release under FOIA. OSHA has long required the same information to be made available at the worksite to employees, former employees, and their representatives, according to the health organizations.

OSHA stated in the preamble to the 2016 final rule that it intended to post the establishment-specific injury and illness data it collected on its public website. The agency said that it would make publicly available all of the fields collected in Forms 300 and 300A, as well as all fields on OSHA Form 301 that did not include personally identifying information.

Rule rollback. In its January 25, 2019, final rule, OSHA amended the electronic recordkeeping regulation by rescinding the requirement that establishments with 250 or more employees must electronically submit information from OSHA Forms 300 and 301. These establishments will still be required to maintain those records on-site, though, and OSHA will continue to obtain them as needed through inspections and enforcement actions.

OSHA said it was making these changes to “improve enforcement targeting and compliance assistance, decrease burden on employers, and protect worker privacy and safety.”

The complaint challenges the January 25 amendments under the Administrative Procedure Act. “The Rollback Rule should be declared unlawful and set aside because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law,” the health organizations contend. “OSHA’s action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

“When it issued the electronic reporting rule after an exhaustive process, OSHA concluded that requiring the submission of workplace injury and illness data would greatly enhance worker health and safety,” Michael Kirkpatrick, the Public Citizen attorney handling the case, said in a statement. “OSHA has now rushed through a new rule drawing exactly the opposite conclusion, but OSHA has failed to provide any good reason for reversing itself.”

The case is No. 19-cv-166.

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