Judge Delays Case Challenging OSHA Electronic Record-Keeping

By Bruce Rolfsen

A federal court won’t decide the legality of OSHA’s electronic record-keeping rule until after the July 1 deadline for employers to comply with the rule, according to an April 3 judge’s order.

The rule also restricts safety incentive and drug testing programs that could encourage workers not to report on-the-job injuries and illnesses.

The order gives attorneys from the Department of Labor and several employer groups challenging the rule until July 5 to submit a proposed summary judgment briefing schedule ( TEXO ABC/AGC v. Perez , N.D. Tex., No. 16-1998, 4/3/17 ).

July 5 is also the deadline for DOL attorneys to respond to requests from public and industrial health organizations to intervene in the case supporting the rule, the order says. Worker safety organizations are concerned the Trump administration OSHA won’t adequately defend the rule.

Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas issued the order.

The DOL is also seeking a 60-day delay in a similar court challenge filed by the National Association of Home Builders and others. As of April 4, no decision had been made in that case ( Nat’l Ass’n of Home Builders v. Perez , W.D. Okla., 17-0009, 1/4/17 ).

466,000 Employers Affected

The rule, issued May 12, requires about 466,000 employers to electronically file with OSHA by July 1 summaries of their OSHA form 300A logs tracking recordable injuries and illness for 2016 (81 Fed. Reg. 29,624). OSHA would then post data from the logs on its public website.

The rule (RIN:1218-AC49) is widely opposed by employer organizations for mandating the end of incentive and testing programs that they believe improve safety. The employers also object to their injury and illness records being made available to anyone.

Unions and other worker advocates back the incentive and testing restrictions as ways to prevent companies from ostracizing workers who raise concerns. Making injury and illness data easily available will allow people outside the company to see how employers compare to each other, the advocates say.

Two sets of employers will have to comply with the electronic record-keeping provisions; all establishments with 250 or more workers—about 34,000 locations—and another 432,000 establishments in designated high-hazard industries with 20 to 249 workers.

The high-hazard industries include construction, manufacturing, wholesale trade, utilities, agriculture, forestry, fishing, hunting and about 60 smaller industry groups, including grocery and department stores, many types of residential health-care facilities, freight trucking and warehousing.

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

For More Information

The judge's order is available at http://src.bna.com/nD4.

The rule is available at http://src.bna.com/eSr.

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