Employers Sue OSHA to Stop Posting of Injury, Illness Reports

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By Bruce Rolfsen

A new OSHA rule enabling the agency to post about 466,000 employers’ injury and illness reports on a public-facing website is being challenged in federal court by several employer organizations ( Nat’l Ass’n of Home Builders v. Perez , W.D. Okla., No. 17-0009, 1/4/17 ).

The groups include the U.S. Chamber of Commerce, the National Association of Home Builders and three poultry industry alliances.

The lawsuit, filed Jan. 4 with the U.S. District Court for the Western District of Oklahoma, asks a judge to declare the entire rule unlawful. National employer groups hadn’t previously challenged the reporting and posting provisions of the rule.

The challenged standard, released May 12, requires about 466,000 worksites with more than 20 employees to electronically submit annual injury and illness log data to the Occupational Safety and Health Administration, enabling the agency to post on its public website summaries of each establishment’s safety records (81 Fed. Reg. 29,624).

The electronic submission requirement took effect Jan. 1 and will be phased in through 2019.

Harming Reputations

Ed Brady, chairman of the home builders association, said in a Jan. 5 statement there are significant concerns with the Occupational Safety and Health Administration’s requirement for employers to submit detailed injury and illness logs for public posting.

“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,” said Brady.

The lawsuit says the limited authority Congress gave OSHA to require the collecting and maintaining of injury and illness data by employers doesn’t allow the agency to force employers to make the information public and violates their constitutional rights.

If Congress intended for OSHA to release reports from individual employers, that ability would have been specified by law, as Congress did for the Mine Safety and Health Administration, the lawsuit says.

Will Trump Defend Rule?

The lawsuit was filed 16 days before the OSHA and Department of Labor leadership that sponsored the rule leaves office and is replaced by the Trump administration.

The change of administrations has raised the question of whether the department will fight to preserve this and other new rules. In a Aug. 11 campaign speech to the home builders’ board of directors, President-elect Donald Trump promised to cut the contractors’ regulatory burdens and costs.

It’s uncertain if labor organizations will intervene in the case.

“The AFL-CIO and the unions strongly support the rule,” the AFL-CIO’s safety director Peg Seminario told Bloomberg BNA Jan. 5. “We are reviewing the latest industry challenge and will be working with our unions to determine the action we will take to defend this rule.”

Drug Testing, Incentive Restrictions

A different court challenge to the rule’s additional limits on drug testing and safety incentive programs was filed July 8 by the National Association of Manufacturers and others with the U.S. District Court for the Northern District of Texas. That lawsuit didn’t contest the reporting and posting requirements ( TEXO ABC/AGC v. Perez , N.D. Tex., No. 16-1998, 11/28/16 ).

In that case, the judge has yet to rule, but did deny the employers’ request that he issue a temporary injunction against enforcing the incentive and drug testing provisions.

The new lawsuit also opposes the drug testing and incentive restrictions.

The complaint says OSHA exceeded Congress’s intentions by allowing safety whistle-blower complaints to become the basis for rule violation citations against employers even though Congress already said whistle-blower cases were covered by a law, the Occupational Safety and Health Act.

Sam Fulkerson of McAfee & Taft PC in Oklahoma City and Bradford Hammock, Tressi Cordaro and Raymond Perez of Jackson Lewis PC in Reston, Va.,represent the plaintiffs.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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