NAHB, industry groups sue Labor Dept. and OSHA over recordkeeping rule

Dive Brief:

  • The National Association of Home Builders — along with the U.S. Chamber of Commerce, the Oklahoma State Homebuilders Association, the State Chamber of Oklahoma and three poultry associations — has filed a lawsuit against the U.S. Department of Labor and the Occupational Safety and Health Administration in the U.S. District Court for the Western District of Oklahoma relating to OSHA's final recordkeeping rule.

  • The lawsuit claims that the rule, “Improve Tracking of Workplace Injuries and Illnesses,” overreaches and violates businesses’ rights under the First and Fifth amendments to the U.S. Constitution, effectively asking the court to apply strict scrutiny in determining the rule's constitutionality.

  • The final rule went into effect on Aug. 1, 2016, and puts in place new electronic record-keeping and reporting requirements among companies with more than 20 employees. Its announcement in May 2016 was met with pushback from construction industry trade groups concerning the exposure of private data. 

Dive Insight:

Mike Means, executive vice president of the Oklahoma State Builders Association, told The Oklahoman that the suit was filed in the Oklahoma City federal court because that ruling body is likely to be friendly to business interests.

The lawsuit claims that OSHA doesn’t have the authority to create what it says will be a public database for employers’ injury and illness records, and it argues that the information's publication won’t impact workplace safety or health. Instead, the lawsuit calls the rule “an imposition on businesses" and says that the publication of "confidential and proprietary information" could be misused, exposing the business "to significant reputational harm.”

Among the initial reaction to the final rule’s announcement in May, industry groups criticized it for presenting an employers’ safety violations separately from their efforts to reduce hazards and improve compliance in the workplace.

The rule intends to give employers a framework for reporting work-related injuries, but the lawsuit said the regulation's wording is vague as to what constitutes compliance.

Chief among concerns related to the new rule is what has become known as the “anti-retaliation” provision. Under this portion of the rule, employers must inform employees of their right to report work-related injuries and illnesses without fear of reprisal. Construction industry groups have criticized this part of the rule because it prevents, among other things, employers from drug-testing workers following an accident unless drugs are deemed a likely contributor to the event.

Although the final rule went into effect on Aug. 1, implementation of the anti-retaliation provision was delayed to Nov. 1 in response to pushback from industry groups and to allow more time for training and outreach. It was further delayed to Dec. 1 following a legal challenge in a Texas court led by the Associated Builders and Contractors. A federal judge ultimately denied that group's proposed injunction against the provision.

In a statement Thursday, NAHB Chairman Ed Brady called the final rule “unlawful and arbitrary.”

"OSHA has not justified any of the rule's requirements with any real benefits analysis and has relied entirely on anecdotal information,” he said. “Workplace safety is of the utmost concern of our members, however this rule is unlawful and does not serve its intended purpose of improving workplace safety. The rule needs to be vacated and set aside in its entirety."

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Filed Under: Commercial Building Residential Building Legal/Regulation