AGs in Six States Sue Trump Administration Over Final OSHA Reporting Rule

In early March, attorneys general from six states filed a lawsuit in the District Court for the District of Columbia against OSHA and the U.S. Department of Labor, challenging the Trump administration’s sudden rollback of OSHA illness and injury reporting requirements. Led by New Jersey Attorney General Gurbir S. Grewal, the suit comes on the heels of a similar lawsuit filed by Public Citizen’s Health Research Group, the American Public Health Association, and the Council of State and Territorial Epidemiologists on Jan. 25, 2019. Both lawsuits claim that OSHA violated the Administrative Procedure Act by failing to follow notice-and-comment protocol  mandated by the Act. The plaintiffs also alleged that OSHA failed to provide a valid rationale for the rollback and dismissed comments from those affected by the decision out of hand.

The reversal was announced just three years after OSHA implemented its much-touted “Improve Tracking of Workplace Injuries and Illnesses Rule” in 2016. The rule required all employers with 250 or more employees and some smaller employers in high risk industries to electronically report the details of workplace injuries to OSHA annually on the Log of Work-Related Injuries and Illnesses form (form 300.)

The Obama-era rule was preceded by what plaintiffs call an “exhaustive process” that included input from industry groups, labor unions, private businesses, researchers, private citizens and state agencies. OSHA determined that all personally identifiable data, including the name of the injured employee and their treating physician, would be omitted from the forms to address privacy concerns.

“When it issued the electronic reporting rule after an exhaustive process, OSHA concluded that requiring the submission of workplace injury and illness data would greatly enhance worker health and safety,” said Michael Kirkpatrick, an attorney for plaintiff Public Citizen. “OSHA has now rushed through a new rule drawing exactly the opposite conclusion, but OSHA has failed to provide any good reason for reversing itself,” he said.

The new “final rule” OSHA issued last May only requires employers to submit form 300A, an annual summary of workplace injuries, which excludes most of the detail included on form 300. According to Jodi Sugerman-Brozan at the Massachusetts Coalition for Occupational Safety and Health, the rollback would serve to prevent states from accessing data crucial to protecting workers’ health. “If we don’t understand what is hurting, or worse, killing workers, we can’t take action to reduce those hazards. The electronic record-keeping rule is meant to ensure that advocates like MassCOSH can conduct research on occupational health and safety, analyze the most serious workplace threats and push for stronger regulatory protections,” she said.

Massachusetts Attorney General Maura Healey echoed Sugarman-Broznan’s statement when announcing her decision to join the lawsuit. “This rollback will make workplaces more dangerous and result in more workers being hurt on the job,“  she said, calling OSHA’s decision “irrational.”

The other states joining New Jersey in the lawsuit are Illinois, Maryland, Minnesota and New York.

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