Litigation over OSHA electronic records rule can proceed

Correction: an earlier version of this story incorrectly stated that Great American Insurance Co. was a participant in the litigation in the U.S. Western District of Oklahoma. Great American was a participant in separate litigation against the U.S. Occupational Safety and Health Act’s regulation.

A stay issued in a lawsuit filed by employer groups against the U.S. Occupational Safety and Health Administration’s controversial electronic record-keeping rule has been lifted, allowing the litigation to proceed.

A lawsuit filed by employer groups challenging the anti-retaliation provisions of the original electronic record-keeping rule for discouraging the use of employee incentive programs and post-incident drug testing — as well as provisions that created a new, citation-based pathway for employee complaints despite the existence of a mechanism to address retaliation complaints under Section 11(c) of the OSH Act — was stayed pending OSHA’s promulgation of the revised rule, experts say.

OSHA released its revised rule in January, which rescinded the requirement for establishments with 250 or more employees to electronically submit information from OSHA forms 300 and 301 while still requiring them to submit information from their Form 300A summaries of work-related injuries and illnesses. But while the revised rule changed the requirements with respect to the personally identifiable information of injured workers, it did not address employer concerns about the public release of their information or the anti-retaliation provisions.

A judge in the U.S. District Court for the Western District of Oklahoma in Oklahoma City agreed to lift the stay in the litigation on Wednesday at the request of the parties.

“As a result of the 2019 Rule, certain causes of action raised by Plaintiffs in this case have become moot,” the parties said in a court documents filed on Tuesday. “However, the 2019 Rule did not address other causes of action raised by Plaintiffs and thus the parties agree that those causes of action may go forward at this time.”

The plaintiffs are scheduled to file an amended complaint by April 1, with summary judgment motions due by July 1.