Six states sue over OSHA electronic reporting rollback

Six states have sued the Trump administration over the U.S. Occupational Safety and Health Administration’s plan to roll back its electronic record-keeping rule.

Illinois, Maryland, Massachusetts, Minnesota, New Jersey and New York challenged the “illegal and unjustified attempt to roll back (the regulation’s) requirements for the public reporting of workplace injuries and illnesses — information that allows states to better design enforcement, outreach, and training programs to improve workplace safety and that enables employees to protect themselves from risks at work,” the states said in State of New Jersey v. R. Alexander Acosta, filed on Wednesday in the U.S. District Court for the District of Columbia.

In July 2018, OSHA released the proposal to amend the 2017 electronic record-keeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA forms 300 and 301 while still requiring them to submit information from their Form 300A summaries in an attempt to address concerns about the agency’s ability to safeguard the privacy of personal information of injured workers.

“Suddenly, OSHA claimed that reporting of detailed workplace injury and illness information would not do much good, but it failed to adequately consider the benefits to states, employers, workers and researchers that it had laid out in detail in 2016,” the states said in the lawsuit. “And just as suddenly, OSHA now asserted that collection and disclosure of this information would undermine worker privacy, despite the ways the agency had already planned to address these concerns. Although many commenters … highlighted these fundamental flaws, OSHA dismissed them out of hand.”

The agency issued its final rule eliminating the 300 and 301 form requirements in January and Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists, which had previously sued the agency over its effort to delay the regulation, hit back in a lawsuit filed in the U.S. District Court for the District of Columbia accusing the agency of violating the Administrative Procedure Act.

OSHA “carefully considered” and addressed the numerous comments on the privacy implications of collecting and publishing information from forms 300 and 301 during the rule-making process, according to the states’ lawsuit.

“Specifically, OSHA decided not to collect data from certain fields (employee names from Form 300 and names and addresses of employees and treating physicians and medical facilities from Form 301) because it determined that such data would create a risk of release of sensitive information without helping users identify workplace hazards,” the states said.

The states alleged that OSHA violated the APA by making an “about face” and not providing a “reasonable explanation” for its new policy.

“Because OSHA violated the APA, the Plaintiff States seek declaratory and injunctive relief vacating the 2019 Final Rule and preventing its implementation,” the lawsuit stated.

An OSHA spokeswoman could not be immediately reached for comment.

This article was first published by Business Insurance.

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