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Courts consider stay of OSHA electronic records rule

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The legal battle over the U.S. Occupational Safety and Health Administration’s electronic recordkeeping rule heated up last week, with opponents asking a Texas judge to issue a nationwide injunction against the rule and the U.S. Department of Labor calling on the judge to reject the request. 

In briefs filed on Friday, the parties argued over whether the U.S. Occupational Safety and Health Administration’s electronic recordkeeping rule, which would require certain employers to electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms, should go into effect as planned beginning Jan. 1. 

The U.S. Department of Labor asked Senior District Judge Sam Cummings to reject calls for an injunction because the plaintiffs, which include the National Federation of Independent Business in Washington, D.C., and the intervenors in the litigation failed to establish that no set of circumstances exists under which the regulation is valid. 

“Neither plaintiffs nor intervenors meet this heavy burden,” the department’s brief said. 

The Administrative Procedure Act, which the plaintiffs alleged was violated by the department in promulgating the rule because OSHA did not provide the legally required notice, “does not direct courts to second-guess the discretionary policy choices that executive agencies make,” the department said. “Rather, APA review is deferential, examining — on the basis of the administrative record — whether the agency permissibly construed its statutory grant of rulemaking authority and arrived at its decision through a rational process.” 

However, intervenors such as the states of Texas, Arkansas and Alabama called the department’s argument that the administrative record controls the court’s review a “misplaced and self-serving contention” since the department argued that the federal agency gets to decide the full scope of the record, according to their brief. 

“The very notion of this argument is disconcerting,” the brief stated. 

If the judge grants the plaintiffs’ request, the injunction should be narrowly tailored not to interfere with other lawsuits challenging the regulation, according to the department’s brief. 

“The district judges in those cases might ultimately agree with the arguments of the plaintiffs or of the department,” the brief stated. “But issuing a nationwide injunction here would effectively prevent those courts from independently assessing the validity of the rule and issuing a judgment with any practical effect.”

The department previously agreed to delay the implementation of the rule’s anti-retaliation provisions until Dec. 1 at the request of U.S. Judge Sam Lindsay of the Northern District of Texas, Dallas division, who is overseeing a challenge to the litigation filed in July by the National Association of Manufacturers, Great American Insurance Co. and several other organizations and is considering an injunction. It is unknown when the judges might issue their rulings.