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Judge Delays Electronic Recordkeeping Ruling

Tuesday, April 11, 2017

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A federal judge has announced that he won’t rule on a case challenging the federal government’s new electronic recordkeeping rule until after July 1, the deadline for many employers to submit injury-reporting information.

The move means that companies will have to comply with the order and meet its first-year deadline while they wait to learn the ultimate fate of the rule.

computer keyboard
© / patrickbanks

The new rule requires many employers to electronically submit workplace injury and illness data to the Occupational Safety and Health Administration.

Judge Sam Lindsay, of the U.S. District Court for the Northern District of Texas, issued the ruling April 4 in relation to the case TEXO ABC/AGC vs. Perez et al., in which industry groups including Associated Builders and Contractors and the National Association of Manufacturers challenge the Department of Labor on the rule.

Lindsay had previously ruled that the ongoing litigation over the rule, officially known as the Improve Tracking of Workplace Injuries and Illnesses Rule, was not sufficient reason to stop provisions of the rule from taking effect. After several earlier delays, many aspects took effect Dec. 1.

Recordkeeping Aspect

The rule requires many employers to electronically submit workplace injury and illness data to the Occupational Safety and Health Administration; the data in question is already kept by employers, but was not previously submitted electronically.

When the rule was first issued, last May, the NAM argued that it put employers under an unfair burden, in terms of both paperwork and privacy.

hard hat
© / jerry2313

“Incentive programs should encourage safe work practices and promote worker participation in safety-related activities," OSHA says.

“[This] regulation will lead to the unfair and unnecessary public shaming of … businesses,” the association said in a statement. “This is a misguided attempt at transparency that sacrifices employee and employer privacy, allows for distribution of proprietary information and creates burdens for all manufacturers.”

OSHA says the information collected will be made public, but also holds that no information made public will include personally identifiable information about individuals injured on the job.

Anti-Retaliation Measures

Some of the controversial aspects of the rule relate to anti-retaliation measures that are included.

Under the rule, employers are not permitted to demand drug-testing of employees who report an injury on the job, unless the injury is “likely to have contributed to the incident.” While OSHA holds that the threat of a drug test could discourage an employee from reporting a non-drug-related workplace injury, groups challenging the rule argue that the language surrounding the drug-testing issue is too vague.

“[I]t’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident,” Greg Sizemore, ABC vice president of Health, Safety, Environment and Workforce Development, said when the suit was filed.

“Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

Safety Incentives

Another aspect of the rule prohibits employers from rewarding workers when they limit the number of injuries that are reported in a given time period. OSHA argues that such incentives can encourage the underreporting of injuries, instead of actually engendering safe practices.

“Incentive programs should encourage safe work practices and promote worker participation in safety-related activities,” the agency says.

Who Must Submit?

Employers required to submit injury reports electronically include those with more than 250 employees that are required to keep records of workplace injuries, and those with between 20 and 249 employees that are in certain “high-risk” industries, including construction and manufacturing. The first deadline for submitting records is July 1.

Plaintiffs have until July 5 to submit a proposed summary judgment briefing, and attorneys for the Labor Department have until the same date to respond to motions to intervene in the case.

‘Volks Rule’ Shot Down

President Trump last week signed legislation that negated another Obama-era DOL rule related to injury reporting. The so-called “Volks Rule” had extended the window of opportunity OSHA had to potentially fine employers over incorrect workplace-injury recordkeeping.

Lindsay said in his order that in the current case, “no further extensions will be granted absent good cause.”


Tagged categories: Construction; Department of Labor; Government; Health and safety; Laws and litigation; OSHA; Safety

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