Industry groups file legal challenge to OSHA recordkeeping rule

UPDATE: This story was updated on July 14 to reflect OSHA’s announcement that the original enforcement date – Aug. 10 – for the anti-retaliation provisions in its Improve Tracking of Workplace Injuries and Illnesses final rule is being delayed until Nov. 1.

Washington – The National Association of Manufacturers and Associated Builders and Contractors Inc. are among the groups taking legal action in an effort to block OSHA’s recently released recordkeeping rule.

In a complaint submitted July 8 to the U.S. District Court for the Northern District of Texas, eight organizations claim the agency does not have the authority to enforce the rule, which would require certain employers to electronically submit worker injury and illness data. OSHA intends to make some of the data publicly available on its website.

Linda Kelly, senior vice president and general counsel for NAM, said in a press release that the Department of Labor is “putting a target on nearly every manufacturer in this country by moving this regulation forward.” She added that DOL “has also failed to recognize the infeasibility, costs and real-world impacts” of the rule, which is scheduled to go into effect Jan. 1.

“Furthermore, releasing this information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy,” Kelly said. “Manufacturers take pride in creating safe workplaces and are supportive of regulations that increase transparency, but this regulation does neither.”

Certain anti-retaliation provisions included in the rule originally were scheduled to go into effect on Aug. 10. In a press release issued July 8, Associated Builders and Contractors called on OSHA for a delay, claiming the provisions will put limits on both safety incentive programs and drug testing after incidents.

“Associated Builders and Contractors is committed to working with our members and OSHA to create safe construction work environments,” Greg Sizemore, vice president of health, safety, environment and workforce development for ABC, said in the release. “But it’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.

“We also object to OSHA’s attempt to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture. This part of the rule could well prevent employers from recognizing safety accomplishments,” Sizemore said.

OSHA states that the rule prohibits employers from using drug testing to retaliate against workers who report injuries or illnesses. However, on July 13 the agency announced it would delay the provisions’ effective date to Nov. 1, saying the move will allow more time for OSHA to conduct outreach and offer additional guidance to employers who have questions.

OSHA issued Improve Tracking of Workplace Injuries and Illnesses on May 12. The rule states that establishments with at least 250 workers must electronically submit to OSHA – on an annual basis – data from their OSHA Forms 300, 300A and 301. Establishments with 20 to 249 employees in certain high-hazard industries must submit information from their annual summary form, OSHA Form 300A.