After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump administration, OSHA has taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule.
By Eric J. Conn and the OSHA Practice at Conn Maciel Carey LLP
OSHA has announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule. While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.
The Proposed Rule includes only one significant change to the current regulation. The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal. However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.
Anti-Retaliation Provisions Remain Intact
Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble. In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.
Particularly controversial was the impact of OSHA’s new anti-retaliation provisions on employers’ policies for post-injury drug testing, safety incentive programs, executive compensation and bonuses and post-incident discipline. Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the preamble to the final rule. For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.
Because OSHA’s new Notice of Proposed Rulemaking does not address most of the fundamental concerns employers have with the rule, we expect it to receive faint praise from the employer community, and most certainly to draw comment for the agency to go further to undo this highly contentious Obama-era rule. (Here is a little background and an analysis of the situation.)
The Legal Challenges
Shortly after the rule was promulgated, industry groups brought a legal challenge to the anti-retaliation elements of the rule and sought a preliminary injunction to prohibit enforcement of those portions of the rule. (TEXO ABC/AGC v. Perez, No. 3:16-cv-01998-D (N.D. Tex. July 8, 2016)). On Nov. 28, 2016, a Texas federal district court denied the preliminary injunction to halt enforcement of the rule. But on June 29, 2017, the Trump administration filed a motion to stay the proceedings in that legal challenge on the basis that OSHA was considering revisions to the rule, and the judge administratively closed the case pending further rulemaking by OSHA. Most people tracking the rule and these proceedings assumed this move by OSHA signaled the agency’s intent to rescind at least the anti-retaliation provisions.
Industry opponents of the rule brought a second legal challenge to the electronic data submission requirements of the rule (Nat’l Assn. of Home Builders et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017)). However, on July 10, 2017, the Trump administration joined a request by the industry plaintiffs to stay that legal challenge because the new administration indicated its intent to reopen the rulemaking to either rescind or amend the rule. The district court judge granted the stay.
Thus, the litigations challenging both aspects of the rule have remained dormant since last year, based on the Trump administration’s representation that it would review and likely revise the rule. With the issuance the proposed rule, the view that the administration’s revisions to the rule would negate the need for further litigation no longer appears to be the case. The proposed changes do essentially nothing to address the subject matter of either of those legal challenges.
The July 30, 2018 Proposed Rule
In sum, after a couple of years of informal changes, extended deadlines and industry challenges, OSHA finally rolled out a NPRM to amend the E-Recordkeeping Rule [83 Fed. Reg. 36494 (July 30, 2018)]. However, rather than settling the status of this rule, this proposal will mire the rule in further controversy. Here specifically is what the proposal entails:
1. Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
2. Require employers to submit their Employer Identification Number (EIN) along with the data.
OSHA’s rationale for the proposal is based on protecting worker privacy by eliminating the electronic collection of case-specific data containing identifying employee information and sensitive health information about specific individuals. The agency apparently now has recognized that collection of such information, which is all over OSHA Forms 300 and 301, adds uncertain enforcement value, yet poses a potential privacy risk. Even if the agency successfully scrubbed the portal data to protect this information, it might still be made public pursuant to a Freedom of Information Act (FOIA) request. Because no such employee privacy concern exists associated with the 300A Annual Summary data (because that data is not included on 300A forms), OSHA’s proposal maintains a requirement to submit this data, thereby essentially giving no merit to the myriad other concerns about the rule raised by industry.
OSHA’s decision to propose to narrow the scope of the rule is not surprising. It already had telegraphed that intent in two regulatory agendas, in numerous speeches, in postings on its web site and in court filings in the legal challenges to the rule, and already implemented some changes as interim measures without rulemaking earlier this year. However, because of the tiny scope of this proposed change, employers’ other concerns with the rule seemingly were ignored, and this proposed revision falls far short of what Industry was expecting. Given President Donald Trump’s commitment to deregulation and clearing unnecessary burdens from employers, the proposed change – which took more than a year to publish – is a major disappointment.
What Should Employers Do Now?
Employers have the opportunity to submit comments on the proposed rule though September 28, 2018. OSHA specifically is seeking comment only on the proposal to cut out the 300 and 301 data submission requirement and the impact of that requirement on worker privacy. And employers should do that, including presenting the risks posed by exposing workers’ sensitive information to possible FOIA disclosure (a topic OSHA is currently addressing in a legal challenge filed by Public Citizen).
However, we would not stop there. With the rulemaking record being re-opened, even if just cracked open, we strongly recommend that industry seize this opportunity to advocate for further revisions. The employer community should engage with the agency in a fulsome manner.
You may submit comments, identified by docket number OSHA-2013-0023, or regulatory information number (RIN) 1218-AD17, by any of the following methods:
Electronically: You may submit comments electronically at https://www.regulations.gov/, which is the federal e-rulemaking portal. Follow the instructions on the website for making electronic submissions;
Fax: If your submission, including attachments, does not exceed 10 pages, you may fax it to the OSHA docket office at (202) 693-1648;
Regular mail, express mail, hand delivery, or messenger/courier service (hard copy): You may submit your materials to the OSHA Docket Office, Docket No. OSHA-2013-0023, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350 (TTY (887) 889-5627). OSHA's Docket Office accepts deliveries (hand deliveries, express mail, and messenger/courier service) from 10 a.m. to 3 p.m. ET, weekdays.
Instructions for submitting comments: All submissions must include the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218-AD17) for this rulemaking. Because of security-related procedures, submission by regular mail may result in significant delay. Please contact the OSHA docket office (telephone: (202) 693-2350; email: firstname.lastname@example.org) for information about security procedures for making submissions by hand delivery, express delivery and messenger or courier service.
All comments, including any personal information you provide, are placed in the public docket without change and will be made available online at https://www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as Social Security Numbers and birth dates.
(This article has been republished with permission from The OSHA Defense Report, OSHA updates from Conn Maciel Carey's OSHA Practice Group.)
Eric J. Conn is a founding partner of Conn Maciel Carey, a boutique law firm focused on labor and rmployment, workplace safety and litigation. He is chair of the firm’s national OSHA • Workplace Safety Practice Group and his practice focuses exclusively on issues involving occupational safety and health law. Conn is a prolific writer on all topics OSHA-related. He edited a popular OSHA law blog at another firm and authored the chapter "OSHA Inspections" in the Occupational Safety and Health Law Handbook, 2nd ed. (Government Institutes, 2008), and the chapter "Defending Clients Against the Occupational Safety and Health Administration's Increasingly Severe Enforcement Practices" in Complying with the Occupational Safety and Health Act: Leading Lawyers on Navigating OSHA Investigations and Developing Successful Compliance Strategies (Aspatore, Inside the Minds, 2012). He also is a popular speaker on OSHA and related legal issues and often is quoted as a leader in the field. He created the OSHA Defense Report Group on LinkedIn and can be found on twitter as @OSHA_Guy.