UPDATE: The Occupational Safety and Health Administration said Wednesday that it will suspend the electronic recordkeeping rule's filing deadline in order to give employers more time to comply, according to The Washington Post. Although the filing date was originally scheduled for July 1, the agency has not yet opened the online portal for companies to submit their injury and illness logs. OSHA has not announced how long the extension will last.
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 — filed a lawsuit in January against the U.S. Department of Labor and OSHA 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.
- OSHA's announcement of the final rule in May 2016, which put in place new electronic recordkeeping and reporting requirements among companies with more than 20 employees, was met with pushback from construction industry trade groups concerning the exposure of private data.
The January lawsuit claimed 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.
This news follows other major OSHA rules that have been halted under the new presidential administration. In early April, President Donald Trump signed a resolution overturning the Volks rule, which authorized OSHA to extend its enforcement authority of recordkeeping violations from six months to five years. Later that week, OSHA announced it would delay enforcement of its new silica rule for 90 days.
The delay and elimination of certain regulations hasn't come as a surprise, as Trump campaigned on pledges to reduce government involvement in business. Experts predict that OSHA will continue to shift to a more business-friendly approach.