May 27, 2015

OSHA Targets September For Publication Of Controversial Recordkeeping Rule

OSHA may be only four months away from publishing a long-promised and highly controversial rule to compel employers to submit electronic records of work-related injuries and illnesses, with the September date for the rule inked in the latest regulatory agenda only a month slip from the agency’s earlier target, leaving observers to speculate the Obama administration is determined to finish the rule but needs to iron out final technical details before publishing it. Issuance of a rule that closely resembles the proposed version would likely draw litigation from industry.The rule is designed to pave the way for OSHA to put worker injury and illness records on the Internet.

The executive branch on Thursday (May 22) released the spring 2015 regulatory agenda, which provides a rough blueprint of when the administration strives to complete the next steps on a wide variety of rulemaking initiatives. OSHA had earlier projected a completion date of August on the rule, but has now pushed it a few weeks to September.

OSHA’s slight change follows a brief re-opening of the rule’s comment period last fall. OSHA wants to disseminate injury and illness data in what the agency sees a way to better reveal specific hazards, but also faces resource challenges in how to handle the influx of electronic records and scrub them of personally identifying information about employees – a key point of criticism from the rule’s opponents.

Regulators re-opened the comment period last year because they decided to additionally propose mandated employer notifications to workers and strengthened whistleblower protections. Those proposed additions grew out of worries that the electronic data posting of information might lead employers to retaliate against employees who report injuries and illnesses.

OSHA touts its upcoming rule in the agenda, saying “[t]he collection of establishment specific injury and illness data in electronic format on a timely basis is needed to help OSHA, employers, employees, researchers, and the public more effectively prevent workplace injuries and illnesses, as well as support President Obama’s Open Government Initiative to increase the ability of the public to easily find, download, and use the resulting dataset generated and held by the Federal Government.”

Court challenges will almost certainly follow eventual issuance of the rule, largely because business advocates refute OSHA’s purported legal basis for the planned electronic dissemination of data. Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, tells Inside OSHA Online that the agency’s citation of legal authority from the OSH Act conspicuously does not include publicizing the data. OSHA in the agenda item derives its legal basis from the enabling statute’s provisions to “authorize the Secretary of Labor to develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” (29 U.S.C. 673).

“Note the absence of the word ‘public,'” Freedman says. “Even OSHA’s own citation to their own legal authority to the rulemaking does not give them the authority to do what they are trying to do in the rulemaking, which is to put the information out and make it public.” The rule is “not permissible,” according to Freedman, who argued forcefully against the planned regulations in public hearings and calls it “completely unsupported by statutory language.”

Moreover OSHA is far too resource-constrained to handle the vast data flow resulting from the electronic filing requirements, he says, and points to OSHA’s acknowledgment in the public hearings that it was still contemplating how to grapple with records obtained through the web portal. “The detail on injury reports is going to be irrelevant to OSHA’s purposes [and] the utter massive – massive isn’t even a strong enough word – reports that are going to come into OSHA, they just physically will not be able the handle the number of reports.”

Freedman says the agency’s recent roll-out of new reporting mandates on hospitalizations, amputations and eye losses, and the resulting need for more resources, demonstrated the problem he describes and calls that a “dress rehearsal” for what the agency faces in terms of data from the proposed recordkeeping requirements.

OSHA’s one-month push-back of the target date could be suggestive of OSHA putting the finishing touches on the rule, sources say. Some of the lapse in issuing the regulations may result from OSHA “chewing on” feedback it received during last fall’s reopened comment period, Freedman says, and adds that instead of changing the agenda date to September, the agency could just as easily have just left it at August and been slightly late. Still, he says, “obviously this is a black box; we don’t know what’s going on behind the scenes.”

OSHA regulatory advocates agree that OSHA still appears on the cusp of issuing a rule, given just a month’s estimated extension. Matthew Shudtz, executive director of the Center for Progressive Reform, says despite the criticism OSHA can easily point to benefits of data modernization and accessible government in bolstering the rule. Modern data-sharing is part of “next generation compliance or enforcement,” he says.

“It’s a way for agencies to hopefully do more with less. In an era of shrinking budgets, agencies have to be more creative in using their authority or time,” he says, “and publicizing their information so they can leverage the resources of advocates and others …. is a smart policy choice.” – Christopher Cole ()


© Cummins, Goodman, Denley & Vickers, P.C.

Website by Dan Gilroy Design