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The U.S. District Court for the District of Columbia has denied the Trump administration’s motion to dismiss litigation challenging the U.S. Occupational Safety and Health Administration’s decision to suspend parts of its electronic record-keeping rule.
However, the federal court also denied a request by a coalition of public health organizations for a preliminary injunction barring OSHA from implementing its planned delay, according to the decision released Wednesday.
The regulation, formally known as the Improve Tracking of Workplace Injuries and Illnesses rule, was adopted under the Obama administration and would require employers with 250 or more employees to electronically submit their injury and illness data to OSHA. In January, Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists sued the U.S. Department of Labor and OSHA after submitting Freedom of Information Act requests for the summary records submitted under the rule that were denied by the agency.
The three public health advocacy groups “view these forms as valuable sources of workplace health data,” claimed they intended to use that data in their research and advocacy efforts once OSHA collected it and launched the lawsuit after the agency announced it was suspending the rule while it engaged in notice-and-comment rulemaking and that it would not accept two of the forms during that time, according to the lawsuit. The groups alleged that OSHA violated the Administrative Procedure Act and asked the court to require OSHA to lift its suspension of the filing deadlines and to accept all three forms.
In July, OSHA released a proposal to amend the 2017 record-keeping regulation by rescinding the requirement for these establishments to electronically submit information from OSHA forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries. But even the proposed change by OSHA fell short for employers as they said the agency’s new rule focused on protecting sensitive employee information while leaving sensitive employer data vulnerable.
“The court finds that plaintiffs have standing to proceed with their claims and that the challenged agency conduct was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline subject to review,” the court said in its ruling. “As a result, the court will deny defendants’ motion to dismiss. Nonetheless, the court finds that plaintiffs have not demonstrated that they will suffer irreparable harm absent preliminary injunctive relief, and it will therefore deny plaintiffs’ motion for a preliminary injunction as well.”
The judge determined it was likely that the public health organizations would, through FOIA requests, obtain beneficial workplace injury and illness data from OSHA’s electronic reporting rule records, which is sufficient to meet their burden to demonstrate standing to sue over the enforcement delay. The judge also rejected the administration’s argument that OSHA’s challenged conduct “was a mere policy statement regarding its exercise of prosecutorial discretion” and warranted a presumption against judicial review.
“Plaintiffs’ complaint plausibly alleges that the May 2018 OSHA action they challenge was a wholesale suspension of the electronic reporting rule, not merely a policy statement regarding OSHA’s enforcement discretion,” the judge stated. “The amendment or revocation of an agency rule amounts to substantive rulemaking subject to the APA’s constraints and generally reviewable by courts.”
But the judge rejected the public health organizations’ arguments that they would suffer irreparable harm because the partial suspension of the rule would impair their ability to pursue their programs of obtaining and analyzing workplace safety data.
“First, the court finds plaintiffs’ contention that there is an immediate risk of permanent harm because OSHA has undertaken notice-and-comment rulemaking to rescind the rule misplaced,” the judge stated. “As an initial matter, plaintiffs have cited no authority for the proposition that a proposed rule can justify preliminary injunctive relief. And the court finds such a proposition dubious. OSHA is under no obligation to adhere to its original proposal — nor must it issue any new rule at all — and thus plaintiffs’ speculation that the result of the rulemaking will mirror the proposal and completely rescind the electronic reporting rule is not so ‘certain and immediate’ as to amount to irreparable harm.
“Moreover, even if we assume that OSHA will imminently rescind the electronic reporting rule, that impending action is not before the court,” the judge continued.
If the plaintiffs are successful on the merits of their claims, the court could declare the earlier suspension of the rule unlawful, require OSHA to recognize the July 2018 submission deadline and give the groups the relief they seek — data that employers should have been required to submit to OSHA by July 2018, the judge noted.
“But to the extent plaintiffs claim that they will suffer irreparable harm because OSHA may unlawfully rescind the electronic reporting rule in the future, that action is not before the court — nor can it be — and plaintiffs cannot rely on it to claim irreparable harm here,” the judge said.
Spokespersons for OSHA and Public Citizen could not be immediately reached for comment.
The U.S. Occupational Safety and Health Administration issued a new memorandum clarifying that the agency’s electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing.