Courts (And The Trump Administration) May Decide If Your Injury Reporting Will Be Made Public

Last year, OSHA pushed through one of the most dramatic changes in how companies track injuries and illnesses at work.   The new injury reporting regulations required many companies to provide their annual injury and illness information electronically.  Much of it would be posted online for the public to see.  The rule also prohibited companies from discouraging reporting or punishing employees who do report injuries.

The changes went fully into effect at the start of this month, although OSHA still does not have the electronic submission system up and running yet. Industry has been very concerned about the potential for injury information to be visible to customers, competitors, unions or public opponants, as well being confused by the vague languge covering the ban on discouraging reporting.

Taking It To The Courts
Now a coalition of businesses that includes everyone from the U.S. Chamber of Commerce to the National Turkey Federation has sued to stop the change from being enforced.   That case was filed in the federal court for the  Western Oklahoma District.  An earlier lawsuit is also moving in the federal court for Northern Texas.  That one includes the National Asssociation of Manufacturers.

The latest lawsuit challenges the rule, in part, because the plaintiffs say OSHA may be able to collect injury data, but it does not have legal authority to share it with the public.   It will be up to the court, based on the evidence, to decide whether that is the case or whether OSHA does have the authority.  However, one reaons the industry groups chose the Western Oklahoma is because it has a reputation for being conservative and employer-friendly.

The Trump Administration May Have An Impact on The Case

This is one case where the timing of the rule, the lawsuit and the election may help employers.   It is possible that the new administration may intervene to support the industry lawsuits.   In that case, the weight of arguing that the rule should stay in place could fall on some third party, such as unions.  A spokesperson for the AFL-CIO is quoted as saying that organized labor is reviewing the case now.

The biggest impact will come if the courts side with employers and say that OSHA does not have the authority to impose the rule.  The U.S. Solicitor General, who will be a Trump appointee, will decide whether the U.S. government appeals the case.  If there is no appeal, it usually means that the decision stands.  In this case it would mean that the rule would be tossed out.

So there is a lot riding on the two cases.  Employers should be ready to comply, but they should also keep up with the latest twists and turns as the lawsuits progress.


What The Rule Says

Under the change, establishments with 250 or more employees are requried to submit the following forms electronically :

  • 300 (Log of Work-Related Injuries and Illnesses),
  • 300A (Summary of Work-Related Injuries and Illnesses), and
  • 301 (Injury and Illness Incident Report).

Much of that information would be available online for the public to see, minus names and other privacy-related information.  Certain smaller companies would just need to report their 300A summary online.    The rule also contained confusing language prohibiting companies from discouraging reporting, including a ban on certain post-injury drug testing.

OSHA’s webpage, with information on compliance, can be found here.

OSHA Delays New Injury Reporting Rules…Again.

OSHA has announced a second delay in its new rules on injury reporting.   The change in reporting was released this summer and it include some controversial provisions aimed at punishing companies that OSHA feels discourage employees from reporting injuries.  Those sections were supposed to go into effect in August, but in the face of a lawsuit and a great deal of opposition from industry OSHA delayed enforcement until November first.

Now OSHA has delayed the implementation yet again, this time until December 1.   The reason was a request from a federal judge in Texas who asked for more time to consider whether to grant an injunction against OSHA.

At the heart of the controversy is OSHA’s belief that some companies discourage employees from reporting injuries or that they may punish employees that do report.   The new regulations allow OSHA to cite companies if it finds the companies make it difficult to report, threaten employees who report or take steps to retaliate after a report.   One of the most surprising positions OSHA has taken is that blanket drug and alcohol testing may discourage reporting, so it should not be used, except as warranted.

The delay may simply mean that industry has another 30 days to come into compliance.  Or it may mean that the court is wrestling with serious issues surrounding the rule change and may ultimately block the new regulations.

That said, companies should review their policies to ensure that they properly communicate to employees that they do have a right to report injuries and that the company wants to encourage reporting.

If you have questions about addressing the change, please feel free to contact me at info@lifelinestrategies.com or by calling 986-789-0577.