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OSHA seen enforcing electronic recordkeeping rule despite lawsuit

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A legal battle over the U.S. Occupational Safety and Health Administration's electronic recordkeeping rule should not stop employers from reviewing their workplace safety policies to ensure they are in compliance with the first provisions scheduled to take effect Nov. 1.

In May, OSHA issued a final rule to expand electronic recordkeeping requirements for workplace injuries and illnesses and make such records publicly available, but the National Association of Manufacturers, Great American Insurance Co. and several other organizations filed a lawsuit challenging the rule on Friday.

OSHA originally planned for the rule's anti-retaliation provisions to take effect on Aug. 10, but announced Wednesday that it would delay enforcement to Nov. 1 to conduct additional outreach and provide educational materials and guidance for employers.

“Certainly the filing of the complaint does not stay the effectiveness of the rule, but the legal challenge could down the road change what the rule may come to look like,” said Erin Brooks, a St. Louis-based associate with Bryan Cave. “It's wishful thinking to think that the complaint will be successful in challenging and changing the regulation, but the reality is that would be a long process.”

The lawsuit claims that OSHA does not have the statutory authority to promulgate the rule's anti-retaliation provisions, which establish a new, citation-based pathway for employee complaints. Legal experts have questioned both the need and legal authority for the anti-retaliation provisions because employees already can file retaliation complaints under Section 11(c) of the federal Occupational Safety and Health Act.

The anti-retaliation provisions may be vulnerable now that the rule is under legal challenge because the agency may have overreached in establishing this new cause of action, said Jennifer Curry, an associate with Ober Kaler in Baltimore, Maryland.

“It is a bit of a stretch,” she said. “Normally that kind of language or provision is something that would be in the actual law, not in the regulations.”

These provisions, effective Nov. 1, require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically bar employers from retaliating against employees, and mandate that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting.

“I think at this point OSHA is probably going to take enforcement measures regardless of what's going to happen with the litigation,” Ms. Curry said, advising employers to start working toward compliance by providing the required notifications and mandating that employees provide written confirmation that they have been advised of their rights.

The coalition also asked the court to declare the rule unlawful because it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs, but employers should review these programs if they have them because these OSHA policies are likely to withstand legal challenge, Ms. Curry said.

“They have issued a very clear statement that they expect those kinds of policies to be revised to make it clear that the employer is still encouraging a safe work environment and they are not discouraging employees from reporting injuries and illnesses,” she said.

Employers still have time to review their policies, as well as how they are communicated to employees and implemented, to determine if they need to make any changes to ensure compliance, said Gregory Narsh, of counsel in the Detroit, Michigan and Harrisburg, Pennsylvania offices of Pepper Hamilton L.L.P.