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Industry groups join to fight electronic injury reporting rule

Posted On: Jul. 8, 2016 12:00 AM CST

Industry groups join to fight electronic injury reporting rule

A coalition of associations, an insurance company and employers has filed a legal challenge against the U.S. Occupational Safety and Health Administration's controversial electronic record-keeping rule.

In May, OSHA issued a final rule to expand electronic record-keeping requirements for workplace injuries and illnesses and make such records publicly available. The new rule, which takes full effect Jan. 1, 2017, requires 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.

The National Association of Manufacturers, Great American Insurance Co. and several other organizations filed the challenge against OSHA's electronic record-keeping rule in the U.S. District Court for the Northern District of Texas on Friday.

“The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward,” Linda Kelly, the association's senior vice president and general counsel, said in a statement. “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. Furthermore, releasing this information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy.”

The coalition has asked the court to declare 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.

Great American has consistently argued that employee incentive programs are valuable to workplace safety and should be consistent with OSHA's mission to protect workers from injuries and illnesses.

“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 lawsuit said.

The rule's provisions on post-incident drug testing have been particularly controversial because state workers comp laws encourage and sometimes require such programs, as do other federal regulations.

“There is no reliable evidence to support OSHA's assertion that any category of safety incentive programs or post-accident drug testing programs lead to materially inaccurate reporting or underreporting of workplace injuries and illnesses,” the lawsuit said.

The lawsuit also argues that OSHA violated the Administrative Procedure Act by failing to give interested parties legally adequate notice of its intention to adopt a rule that would ban or limit these types of safety programs.

Establishments with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit information on their 2016 injuries and illnesses by July 1, 2017, and their 2017 information by July 1, 2018.

An OSHA spokesperson said the agency cannot comment on active litigation.