Update: OSHA Sued Over Recordkeeping Rollback

As expected, a lawsuit has already been filed opposing OSHA’s rollback of its electronic recordkeeping rule that we discussed here last week, and in more detail here.

For those of you just tuning in, OSHA last week repealed a major section of the Obama era recordkeeping rule that would have required certain businesses with 250 or more employees and employers in high-risk industries with 20 or more employees to send in to OSHA detailed non-confidential injury and illness information contained on OSHA Forms 300 and 301.  Injury and illness summary information contained on From 300A will still have to be sent to OSHA on an annual basis. OSHA’s poorly supported excuse for rolling back these requirements was concerned about employee confidentiality, even though the program was specifically designed so that OSHA would receive no confidential information

Public Citizen Lawsuit

Public Citizen’s Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists filed a lawsuit last Friday asking the US District Court for the District of Columbia to overturn OSHA’s rollback of the recordkeeping regulation.

According to Public Citizen attorney Michael Kirkpatrick,.

When it issued the electronic reporting rule after an exhaustive process, OSHA concluded that requiring the submission of workplace injury and illness data would greatly enhance worker health and safety. OSHA has now rushed through a new rule drawing exactly the opposite conclusion, but OSHA has failed to provide any good reason for reversing itself.

Chamber to OSHA: What Have You Done For Us Lately?

Despite the OSHA cave-in to employer attempts to cover-up injury and illness information, the Chamber of Commerce thinks the agency should have gone further. According to Politico, Marc Freedman, vice president of employment policy at the Chamber of Commerce, is “disappointed” with the rollback rule, because it failed to address the continuing obligation to send in injury and illness summary information, and because it didn’t eliminate language that prohibits employers from retaliating against workers who report injuries and illnesses.

The Chamber said that it will revisit a previous lawsuit that challenged the anti-retaliation language, alleging that it prohibited all employer drug testing programs. Actually, the language in the regulation just prohibits drug testing that is used to retaliate against employees.  OSHA has since issued a memo weakening the effect of that language.

Stop Making Sense: The Risk of Disclosing Summary (300A) Data

As noted above, one of the Chamber’s main concerns is that OSHA will continue to require employers to send in the Summary injury and illness data on OSHA Form 300A which OSHA will use to more efficiently target its enforcement inspections.  When the rule was originally issued in 2016, the Obama administration announced that it intended to make this information public so that employees and job seekers would know which companies are more dangerous, and employers could compare their safety records against others in their industry. The point was that making this information public would “nudge” the more hazardous employers to make their workplaces safer without direct OSHA intervention.

OSHA has retained the requirement that the information be sent to the agency, but in a bone thrown to the Chamber, the agency insists that the information will not be posted and cannot be made public under the Freedom of Information Act (FOIA) because disclosure of the information could interfere with OSHA enforcement.

How is that?

According to its explanation in the preamble to the rollback reg, “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

Let’s look more closely at that.

OSHA is apparently arguing that it doesn’t want high hazard employers to be able to use public data to realize that they may be higher on the OSHA inspection priority list.

This is odd, to say the least. Because in previous years, when OSHA required some employers to send in this exact information for enforcement targeting purposes, OSHA explicitly warned high risk employers that they were more likely to be inspected, in hopes that they would eliminate unsafe conditions before OSHA arrived.

Similarly, one of the goals of OSHA’s national and local emphasis programs is to warn employers in high-hazard industries that they may be at higher probability of an OSHA Inspection, and thereby encourage them to make use of OSHA’s compliance assistance programs to fix hazards before they were inspected.

In other words, providing information to employers that they should anticipate an OSHA inspection is a feature of these programs, not a bug. It’s called “prevention.”

This type of prevention program is critical to a tiny, underfunded agency like OSHA which can only hope to get to a small fraction of US workplaces each year. If disclosure of data gets employers to fix their workplaces because they have a heightened fear of an OSHA inspection, and reduces the number of employers that OSHA has to cite, that should be a good thing.

Police post signs on the highway warning speeders of cameras and radar surveillance. Do they interfere with traffic enforcement because they warn drivers that they may be at higher risk of getting a ticket?

Secretary of Labor Alex Acosta has testified that its better to get employers to prevent an injury before it happens, than to make OSHA cite them. “As a US attorney, I would talk to Chambers and said we can prosecute cases, but preventing wrong doing in the first place is more successful.”

So, how does any of this make sense? Apparently only the Chamber of Commerce knows for sure….