Stay Issued in OSHA’s Electronic Reporting Litigation

JULY 13, 2017

U.S. District Court Judge David L. Russell (W.D. Oklahoma) issued a stay on July 11 of the pending litigation over OSHA’s electronic injury and illness reporting rule, and he ordered the government to provide updates to the court every 90 days as the Agency reviews and revises the regulation.

The stay follows Judge Russell’s recent denial of a motion from labor unions, including the AFL-CIO and United Steelworkers, to intervene in the litigation challenging the Obama-era regulation.

The unions had argued that the Trump Administration would not adequately defend the regulation or would “water it down” to the point it would be unrecognizable. OSHA’s lawyers contended that the Agency would defend the rule and, therefore, the unions’ participation was unnecessary.

Judge Russell found that the unions did not cite any law or procedural rule that gave them the right to join the litigation.

OSHA announced last month that it will postpone the July 1, 2017 compliance deadline for covered companies to electronically submit their injury and illness data according to a recent revision to the Agency’s website.

OSHA published a proposed rule that seeks comments on the proposed delay of the rule’s initial compliance date from July 1, 2017, to December 1, 2017. OSHA notes that it is also going to issue a separate notice to solicit comments on other aspects of the rule.

The five-month postponement is welcome news for employers, including ILMA members, who were concerned that OSHA’s intended, publicly-available database for the submissions exceeds the Agency’s recordkeeping authority and violates the First Amendment by compelling businesses to give up too much private information.

As a reminder, OSHA’s electronic reporting rule has two major provisions. First, it requires electronic submission of injury and illness data that will subsequently be placed on OSHA’s website for public review.

Second, it mandates that employers fully explain and promote employee reporting of work-related injuries and illnesses, and employers may not retaliate against a reporting employee. Further, it requires that employers not implement incentive or drug-testing programs that could dissuade such employee reporting.

Under the now postponed rule, OSHA required every workplace with 250 or more employees in industries covered by the recordkeeping regulation to submit information electronically from their 2016 Form 300A by July 1, 2017. Additional requirements commence in 2018. 

Further, establishments with 20-249 employees in specified “high-risk industries” – identified by OSHA on a specific list and including all employers in manufacturing industries – were originally required to submit their Form 300A electronically by July 1 in 2017 and 2018.