Legal challenge to injury and illness data reporting rule

OSHA’s new, misguided requirement for detailed electronic reporting of injury and illness data by employers has come under legal challenge by a coalition of trade associations, employers and an insurance company.

OSHA intends to publish the injury and illness data on a public website, which has raised concerns about privacy and cyber-security. OSHA says personally identifiable employee information will be removed, but it will not be difficult for those with knowledge of the employer’s operations to discern an injured employee’s identity, and potentially private medical information, using information from the submitted forms.

In addition, the public information will lack important context, such as what may have given rise to the injury or illness, and whether the employer was at fault.

“The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward,” said Linda Kelly, senior vice president and general counsel of the National Association of Manufacturers, one of the groups bringing the legal action, which was filed in U.S. District Court for the Northern District of Texas.

“Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation. Furthermore, releasing this information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy.”

The lawsuit contends that the rule unlawfully prohibits or otherwise limits employer safety incentive programs and routine mandatory post-accident drug testing programs. OSHA contends that such programs may encourage the under-reporting of illnesses and injuries.

“There is no reliable evidence to support OSHA’s assertion that any category of safety incentive programs or post-accident drug testing programs lead to materially inaccurate reporting or under-reporting of workplace injuries and illnesses,” the lawsuit said.

Establishments with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit information on their 2016 injuries and illnesses by July 1, 2017, and their 2017 information by July 1, 2018.