OSHA Sued Over New Injury Reporting Rule

January 6th, 2017 by Trey Barrineau

The National Association of Home Builders (NAHB), the U.S. Chamber of Commerce and other groups are suing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) over a new rule that requires companies to make all of their injury and illness data public.

The lawsuit was filed Wednesday in the U.S. District Court for the Western District of Oklahoma. It claims that the rule, called “Improve Tracking of Workplace Injuries and Illnesses,” is “arbitrary, capricious, and otherwise contrary to law.”

The plaintiffs also say it violates the first and fifth amendments of the Constitution.

“The rule violates the First Amendment by compelling companies to submit their confidential and proprietary information for publication on a publicly available online database,” the complaint reads. “There is no evidence that publication of this information will have any effect on workplace safety and health. The limited authority given OSHA by Congress to require employers to collect and maintain injury and illness data cannot be read to allow the agency to force employers to make public this information in violation of their constitutional rights. Further, the rule violates the Fifth Amendment by failing to provide employers adequate notice of what constitutes ‘reasonable’ reporting procedures, subjecting employers to citation and potentially significant penalties without providing due process of law.”

The new rule requires employers in high-hazard industries such as manufacturing and construction to send injury and illness data directly to OSHA, which would then post it on the agency’s website.

‘The Rule Needs to be Vacated’

Ed Brady, chair of the NAHB and a home builder and developer from Bloomington, Ill., called the controversial rule an example of regulatory overreach.

“Among the many issues with the rule, there are significant concerns associated with OSHA’s requirement of employers to submit detailed injury and illness logs to the agency for public posting,” Brady said in a statement. “Not only does OSHA not have the authority to do this, it also exposes a business to significant reputational harm, all without demonstrating any evidence that it would effectively reduce workplace injuries and illnesses.”

Brady said NAHB is also concerned about the anti-retaliation part of the rule, which would allow OSHA inspectors to cite an employer without a complaint from a worker.

“This is a clear overreach of authority as it goes against Congress’s carefully constructed mechanism to address retaliation that is specifically set forth in the OSHA statute,” he said. “OSHA has not justified any of the rule’s requirements with any real benefits analysis and has relied entirely on anecdotal information. This is entirely insufficient and cannot be allowed to stand and potentially serve as a precedent for other agency rules. Workplace safety is of the utmost concern of our members; however, this rule is unlawful and does not serve its intended purpose of improving workplace safety. The rule needs to be vacated and set aside in its entirety.”

Under the new rule, all businesses with 250 or more employees in industries covered by the recordkeeping regulation would be required to electronically submit injury and illness information from OSHA Forms 300, 300A, and/or 301 directly to the agency.

Not the First Legal Challenge

A recent lawsuit forced OSHA to delay enforcement of anti-retaliation provisions in the controversial new rule. The original implementation date for the rule was August 2016, but following a lawsuit filed in Texasthat date was pushed back to December 1, 2016. Phased-in data submissions were to begin in 2017.

In July, a coalition of business groups, including the Associated Builders and Contractors (ABC) and the National Association of Manufacturers (NAM), filed a lawsuit in U.S. District Court for the Northern District of Texas challenging those anti-retaliation provisions. The groups say the new rule “will limit post-accident drug testing and safety programs that contribute to jobsite construction safety,” such as incentive contests that award prizes to workers for injury-free days.

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