Five-Month Delay Proposed for OSHA Injury Data Requirements

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By Marissa Horn

Employers would have another five months to comply with OSHA’s rule requiring them to submit injury and illness data electronically to the agency under a delay proposed June 27.

The compliance deadline would be pushed from July 1 to Dec. 1, 2017, which would allow the Occupational Safety and Health Administration to further review and consider the rule, the agency said in a statement. The proposed delay also said the agency plans to issue a separate proposal to revise or remove other provisions in the final rule (RIN:1218-AC49).

Pushing back the deadline would be the first step in a long process that could include fully reviewing and revoking the recordkeeping rule, according to Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, which opposes the rule.

“A July 1 deadline meant that they had to act quickly to address it,” Freedman told Bloomberg BNA June 27. “Extending that deadline to December means going forward they can take advantage of that window for review.”

Anti-Retaliation Provision

A part of the rule that could soon come under reconsideration is a provision that prohibits employers from retaliating against workers for reporting injuries and illnesses, Peg Seminario, director of occupational safety and health for the AFL-CIO, told Bloomberg BNA June 27. But with the current acting OSHA head, Dorothy Dougherty, retiring June 30 and the lack of a political appointee in place at the agency, Seminario said delaying action on the rule is mostly driven by deadlines.

“There is a small number of people dealing with these things, and that’s why you are seeing this delayed action on this rule,” Seminario said. “The actions that are being taken by the agency are ones that are driven by the calendar and the clock rather than by policy direction from a confirmed head of the agency.”

OSHA had announced May 17 that employers wouldn’t have to file the information with the agency by July 1, but did not specify how long the requirement would be delayed. At that time, the agency had not opened the online portal for businesses to file the numbers from their forms summarizing each workplace’s recordable injury and illness cases and rates for the previous year. The rule was issued in May 2016.

The delay will allow companies the same four-month window for electronically filing data from injury and illness logs that the agency requires workplaces to keep.

Recordkeeping in Federal Court

Businesses and some safety consultants said they opposed the rule because it enables OSHA to post injury and illness data from about 466,000 workplaces with 20 more employees on the agency’s public website. Employer groups, including the U.S. Chamber of Commerce, petitioned the Department of Labor to reopen the rulemaking and consider changes in opposition to the rule, and more specifically, provisions including restrictions of incentive and drug testing programs.

“It’s no secret—we’ve been very public with our opposition over the regulation—all of its parts,” Freedman said. “And we hope that this administration is going to review that with an eye toward undoing it.”

There are two federal court challenges to the rule.

Several unions and worker advocacy groups, including the AFL-CIO and the American Public Health Association, asked to intervene and defend the rule after they said the Trump administration’s actions to rescind or weaken regulations raised questions on whether the government would adequately defend the rule. A district court judge told the groups June 26 they would not be allowed to intervene in the case.

“Now, there’s no indication that the Labor Department is planning to defend this rule,” Seminario said. “That proves that in our reason to intervene, we were correct.”

The proposed deadline extension will be up for a public comment period until July 13, the agency said in a statement.

OSHA did not make further comment to Bloomberg BNA on the proposed delay.

To contact the reporter on this story: Marissa Horn in Washington at mhorn@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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