Not everyone welcomes this new rule. The debate pits those who believe the new rule will improve public safety against others who believe that public reporting does little to address the issue of reducing the number of workplace injuries and illnesses, and may make companies more vulnerable to lawsuits and negative media reporting.
OSHA explains that the new rule is intended to “better inform workers, employers, the public and OSHA about workplace hazards” and to generally help “improve workplace safety and prevent injuries and illnesses.” As Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels explained, “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”
However, the new rule has resulted in a wave of concern and an outcry from a number of industries. Although Congress has authorized OSHA to adopt injury and illness recordkeeping requirements, many industries argue that the new rule has gone too far, that maintaining this new rule will burden certain industries and, at the same time, cast a negative light on the high risk industries.
Recently, the National Association of Manufacturers, or NAM, along with other interested parties decided to take legal action, filing suit against OSHA in the U.S. District Court in the Northern District of Texas. NAM maintains that the new rule is “putting a target on nearly every manufacturer in this country” by requiring companies, particularly high-risk companies, to report workplace injuries that are viewable by the public. In addition, NAM argues that OSHA does not have statutory authority to enforce this rule and has overlooked (or ignored) the real-world implications of the rule. Not only is implementation and administration of the new rule infeasible, NAM explains that it is simply too costly.
In its briefing, NAM makes a number of arguments to block the implementation of the new rule. NAM believes that the new rule, which grants OSHA authority to “create an additional enforcement tool” and establishes civil penalties for discriminatory action, overreaches OSHA’s authority pursuant to Section 11(c) of the Occupational Safety and Health Administration Act. Second, OSHA has failed to demonstrate that the new rule is reasonably necessary or appropriate to ensure that employers are complying with the injury and illness reporting requirements. Further, OSHA was required to show that the new rule does not impose an unreasonable burden on employers, but has failed to make such a showing. NAM also argues that OSHA failed to provide interested parties with adequate notice of OSHA’s intent to implement the new rule.
As a practical matter, NAM also notes that the new rule has placed “form over substance” by establishing mandatory reporting requirements that do not address the underlying issue: reducing the number of workplace injuries and illnesses. In short, the new rule does nothing to further the ultimate goal. In fact, the new rule bans so-called “retaliatory” actions in connection with workplace injuries and reporting. NAM argues that incident-based safety incentive programs and mandatory post-accident drug testing policies, programs that have been shown to reduce workplace injuries, are considered “retaliatory” actions under the new rule and would be banned.
Shortly after NAM filed an emergency motion and supporting memorandum with the court, OSHA delayed implementation of the rule, which was originally intended to go into effect on August 10, 2016, to November 15, 2016. NAM considers this a minor victory and an indication that OSHA acknowledges it lacks the statutory authority to enforce this rule.
Jamie K. Moon is an attorney in the Boise office of the law firm Moffatt Thomas. Ms. Moon focuses her practice in the areas of commercial litigation, workers compensation for employers and employment law. She can be reached via telephone at 208.345.2000. More information is available online at www.moffatt.com.