Court Asked to Block OSHA’s Suspension of Electronic Recordkeeping Rule

Three public interest groups have petitioned the U.S. District Court for the District of Columbia to order OSHA to lift its suspension of portions of its rule requiring employers to electronically submit to OSHA certain information about injuries and illnesses that occur in their workplaces. According to the petition before the court, OSHA suspended the requirement to submit the information without providing the public the opportunity to comment on the action as required by the Administrative Procedures Act (APA).

Employee Identities Protected

Issued under the Obama administration, the Improve Tracking of Workplace Injuries and Illnesses Rule (May 12, 2016, Federal Register (FR)), or Electronic Reporting Rule, required covered establishments to submit to OSHA, by July 1, 2018, the following:

• OSHA Form 300—a record of each recordable employee injury and illness; called the log
• OSHA Form 301—a supplementary incident report that provides additional details about each case recorded
• OSHA Form 300A—an annual summary report derived from information in the log.

In the final rule, OSHA stated that with “the information obtained through this final rule, employers, employees, employee representatives, the government, and researchers may be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses.” OSHA further stated that it intended to post the establishment-specific injury and illness data it collects on its public website and that it would make publicly available all the fields collected in OSHA Forms 300, 300A, and 301. The agency added that it did not intend to post any information on the website that could be used to identify individual employees.

Suspension Announced

In May 2018, OSHA announced the suspension of the July 1, 2018, deadline for the electronic submission of 2017 OSHA Forms 300 and 301. OSHA stated that it would not accept Form 300 and 301 information at this time and also that it would issue a proposed rule to reconsider, revise, or remove provisions of the Electronic Reporting Rule, including the collection of the Forms 300/301 data. The Agency said it was proposing to remove the requirements to protect workers from having their personally identifiable information disclosed under the Freedom of Information Act (FOIA). On July 30, 2018, OSHA issued a notice of proposed rulemaking, reiterating its intention to end collection of OSHA Forms 300 and 301. The public comment period on the proposal ends September 28, 2018.

Plaintiff Arguments

The plaintiffs’ request that the court order OSHA to implement the reporting rule in its entirety is based on two arguments.

First, the APA generally requires agencies to give interested individuals notice and the opportunity to comment before promulgating rules and also empowers courts to hold unlawful and set aside agency actions taken without observance of procedure required by law. Here, “there is no question that the Electronic Reporting Rule is a substantive rule that required notice-and-comment rulemaking,” state the plaintiffs. OSHA’s notice proposing to eliminate the requirement that establishments submit Forms 300 and 301 in the future does not excuse the agency’s unlawful suspension of the Electronic Reporting Rule’s July 1, 2018, deadline without engaging in notice-and-comment rulemaking, the plaintiffs continue, and emphasize that OSHA’s provision of notice-and-comment procedures after the suspension does not cure the failure to provide them before the suspension.

Second, the plaintiffs contend that OSHA’s action was arbitrary and capricious based on what it did not consider. “Specifically, OSHA failed to acknowledge the benefits of the requirement that covered establishments submit their 2017 OSHA Forms 300 and 301—that is, the reasons why it thought the Electronic Reporting Rule appropriate in the first place—let alone explain why it now assigned those interests less weight,” state the plaintiffs. “Put simply, OSHA entirely failed to consider an important aspect of the problem.” Furthermore, say the plaintiffs, OSHA does not explain why covered establishments’ submission of 2017 Form 300 and 301 data in accordance with the July 1, 2018, deadline would have any effect on OSHA’s ability to reconsider or revise the rule.

The plaintiffs asked the court to order OSHA to require and accept the Form 300 and 301 submissions as specified in the Electronic Reporting Rule within 30 days after the September 7, 2018, filing of the petition.

The petition to the district court is at https://www.citizen.org/system/files/case_documents/motion_and_memo_for_preliminary_injunction.pdf.