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Opponents urge courts to reject OSHA’s electronic record-keeping rule

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Opponents of the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule filed an amended complaint last week urging a Texas court to vacate the rule while it weighs a dismissal motion filed in the last days of the Obama administration. 

The plaintiffs in the case, which include the National Association of Manufacturers and Great American Insurance Co., filed the amended complaint in U.S. District Court in Dallas on Wednesday after the court denied a previous motion for a nationwide preliminary injunction to prevent the electronic record-keeping rule, which requires certain employers to annually electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms, from taking effect on Jan. 1.

The lawsuit argues that the rule is unlawful because it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs, and requires employers to permit unwarranted delays in employee reporting of injuries, and unlawfully requires employers to electronically submit confidential and controversial information to an online database that will be made available for public dissemination. 

“Incident-based safety incentive programs and routine, mandatory post-accident drug testing programs help employers to promote workplace safety, which is supposed to be OSHA’s primary mission also,” the plaintiffs said in the complaint. “Instead, out of a misguided zeal to improve accuracy of reporting on workplace injuries (albeit with no evidence that injuries are not already being accurately reported), OSHA has lost sight of the importance of reducing the number and severity of injuries themselves.” 

The plaintiffs asked the court to issue an order vacating the new rule or at least the provisions that prohibit safety incentive programs and routine, mandatory post-incident drug testing or immediate reporting of injuries, according to the lawsuit. 

However, the Obama administration asked the court on Jan. 18 to dismiss the original complaint and grant summary judgment because the plaintiffs lack standing to challenge the rule, it does not harm them or none of their claims are reviewable or correct, according to court documents. 

The U.S. Department of Labor said the anti-retaliation provisions of the rule simply prohibits employers from retaliating against workers for reporting injuries. 

“They cannot show that they intend to engage in activity that would violate the rule’s anti-retaliation provision because the (Occupational Safety and Health) Act already proscribed the same activity,” the department said. “And they have not shown that enforcement against them is imminent. They have not even alleged, much less carried their burden to demonstrate, that OSHA has enforced the rule or taken any investigative or enforcement steps against plaintiffs or their members or insureds.”

On Jan. 4, the National Association of Home Builders of the United States and the U.S. Chamber of Commerce, among other organizations, also challenged the regulation in the U.S. District Court for the Western District of Oklahoma in Oklahoma City, asking the court to declare the rule unlawful and for an order vacating the regulation. The lawsuit challenged OSHA’s plans to publish the collected information on a public website, with the plaintiffs arguing that there is no evidence that publication of the information will have any effect on workplace safety and health.

“Rather, the rule is an imposition on businesses all so that their confidential and proprietary information may be misused by the public and special interest groups, thereby exposing them to significant reputational harm,” the plaintiffs said. 

Legal experts have raised doubts about the future of the electronic record-keeping rule under the Trump administration, which could attempt to roll back the rule per its efforts to reduce federal regulations or stop defending the rule in court. 

“It would give an opportunity for the new administration to say ‘we’re not going to answer it,’” Mark Kittaka, a Columbus, Ohio-based partner with Barnes & Thornburg L.L.P., said of the Oklahoma litigation. The administration has not commented on the merits of the lawsuit in court. 

But employers should be aware that the rule is currently in effect. 

“For now, you have to comply with that,” Mr. Kittaka said. “You have to comply with the (regulations) that are out there.”