As a new, regulation-averse Congress and White House settles in, several newer OSHA rules are under attack that industry associations have maligned as “unlawful and arbitrary regulatory overreach.”
The first of those rules regards injury and illness reporting. As of July 1, contractors are expected to electronically submit the injury and illness information they are already required to keep under OSHA regulations. Contractors can either manually input the data or upload a .CSV file, which can be created in Excel.
Other than changing how the records are submitted, the new rule also makes public information that had previously been private — and adds anti-retaliation protections for employees. That means employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, OSHA said. (Simply posting the already required OSHA workplace poster satisfies this requirement.)
OSHA contends the rule’s public reporting requirement will “nudge” employers to focus more on safety. “…And will ultimately help the employer’s bottom line as well,” the organization said in a statement. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses,” OSHA said on its website.
But industry groups strongly disagree — especially over the public reporting and anti-retaliation components. These aspects of the rule “expose a business to significant reputational harm,” said Ed Brady, NAHB chairman in a statement. A coalition including NAHB and U.S. Chamber of Commerce are suing the U.S. Labor Department and OSHA over what Brady characterized as an “unlawful and arbitrary” rule.
“We have vigorously opposed this rule from the start, and cannot allow this type of regulatory overreach to occur,” Brady said. “….OSHA has not justified any of the rule’s requirements with any real benefits analysis and has relied entirely on anecdotal information. …Workplace safety is of the utmost concern of our members, however this rule is unlawful and does not serve its intended purpose of improving workplace safety. The rule needs to be vacated and set aside in its entirety.”
Now there are signs that may be happening. In late February, OSHA removed the justification for publishing data from individual employers’ injury and illness logs, NRCA reported on its website. The report speculated that the Trump administration may be doing away with the rule. However, barring any formal declarations, the July 1 deadline for electronic reporting remains in place.
Meanwhile, the Senate passed legislation Tuesday to overturn OSHA’s “ongoing obligation rule.” This related rule changed the period in which employers could be cited for work-related injury and illness violation from six months to five years — the same amount of time employers are required to maintain work-related injury and illness data. The Resolution for Disapproval (Resolution 83) narrowly passed the Senate in a 50-48 vote along party lines.
Such a resolution has become even more important this year because, after remaining frozen since 1990, OSHA maximum penalties have leapt nearly 80%. That means the top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
No word yet whether attempts are being made to repeal or alter those fines. But given the current climate in Washington, there’s a good chance they too will fall under renewed scrutiny.