Another Lawsuit Filed Against OSHA Electronic Injury Reporting Rule

January 6, 2017

The National Association of Home Builders, state builder groups, the U.S. and state chambers of commerce, the National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association filed a lawsuit Wednesday against the U.S. Department of Labor over a new workplace rule scheduled to take effect Janury 1, 2017. The suit was filed in the U.S. District Court for the Western District of Oklahoma in Oklahoma City.

The lawsuit alleges OSHA had no authority to issue the rule, called “Improve Tracking of Workplace Injuries and Illnesses,” and that the rule violates the defendants' rights under the First Amendment and Fifth Amendment to the U.S. Constitution.

OSHA says that by making injury information public, employers will be motivated to improve workplace safety.

This is not the first legal challenge to the rule. Original implementation of the final rule was to begin in August 2016 but a lawsuit filed in Texas in July pushed the implementation date to December 1, 2016. Phased-in data submissions were to begin in 2017.

The OSHA rule requires employers in high hazard industries such as construction to electronically submit injury and illness records directly to the agency, which will be made available online minus any information that could be used to identify individual employees. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses, free from retaliation. The rule also requires employers to create reasonable procedures for employees to report injuries, and gives OSHA more authority to remedy alleged discrimination and retaliation against workers who report injuries.

“NAHB and other industry groups have joined together to fight this unlawful and arbitrary rule. We have vigorously opposed this rule from the start, and cannot allow this type of regulatory overreach to occur, " said Ed Brady, chairman of the National Association of Home Builders.

“Among the many issues with the rule, there are significant concerns associated with OSHA’s requirement of employers to submit detailed injury and illness logs to the Agency for public posting. Not only does OSHA not have the authority to do this, it also exposes a business to significant reputational harm, all without demonstrating any evidence that it would effectively reduce workplace injuries and illnesses.

“We also have serious concerns about the anti-retaliation portion of the rule which would allow OSHA inspectors to cite an employer without needing a complaint from a worker—this is a clear overreach of authority as it goes against Congress’s carefully constructed mechanism to address retaliation that is specifically set forth in the OSHA statute."