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July 8 — The new OSHA standard limiting safety incentive programs and enabling the agency to post online employers' injury and illness data was challenged July 8 in federal court by several employers groups ( TEXO ABC/AGC v. Perez, N.D. Tex., No. 16-1998-D, complaint 7/8/16 ).
The complaint was expected after numerous employer representatives spoke out against the standard following its May 12 release by the Occupational Safety and Health Administration (81 Fed. Reg. 29,624). The requirements take effect Aug. 10.
In a July 8 statement, the National Association of Manufacturers' general counsel, Linda Kelly, summed up the group's opposition to the standard.
“The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward,” Kelly said. “Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”
Attorney Lawrence Halprin of Keller and Heckman LLP, who represents one of the plaintiffs, the Great American Insurance Co., said the suit declares that the new employee involvement provisions in 29 C.F.R. 1904.35(b)(1)(i), (iii) and (iv) are unlawful.
The “challenged provisions, and their underlying findings and conclusions, are arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law,” Halprin told Bloomberg BNA July 8.
The complaint was filed with the U.S. District Court for the Northern District of Texas.
Typically, challenges to new federal rules or standards must be filed within about 60 days of the regulations' release. Because this regulation is considered a standard, not a rule, the complaint was filed with a district court instead of with an appeals court.
The standard (RIN:1218-AC49) began in 2013 as a proposal to require employers to electronically submit their OSHA 300 log information to the agency so that the agency could post the information on its website.
However, after labor groups and some employers raised concerns that making the data public would encourage worksites to file misleadingly low injury and illness numbers, OSHA broadened the rulemaking.
Added to the rulemaking were prohibitions against safety incentive and drug testing programs that could result in workers not notifying supervisors of incidents.
The standard requires about 466,000 worksites with more than 20 employees to electronically submit annual injury and illness log data to OSHA, enabling OSHA to post on its public website summaries of each establishment's records. The electronic submission requirement starts taking effect in 2017 and will be phased in through 2019.
The standard also says workplaces “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure isn't reasonable if it “would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
To implement the reporting procedure, OSHA said incentive programs rewarding workers and supervisors for low injury and illness rates may violate the standard because cash and other benefits could convince workers to not report cases.
In addition, OSHA said drug testing programs requiring any worker reporting an injury to be tested could violate the standard because the threat of testing would discourage reporting.
The Manufacturers’ Center for Legal Action, Keller and Heckman LLP, Littler Mendelson PC and the American Fuel & Petrochemical Manufacturers' general counsel office represent the eight plaintiffs.
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The complaint is available at http://src.bna.com/gDT.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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