OSHA rule: lawyers advise readiness and patience

Lawyers advise employers to be patient in the face of delays to OSHA reporting rule changes, the American Lawyer reports.

‘Big employers may be feeling some relief now that the Occupational Safety and Health Administration has scrapped a July 1 deadline for them to submit employee illness and injury reports to an online public database that was mandated under the Obama administration.

But the Trump administration has not yet said how it plans to proceed beyond the indefinite delay, prompting some labor and employment lawyers to advise their clients to take a wait-and-see approach. One possible scenario: Trump’s OSHA could undo the Obama-imposed regulatory requirement altogether.

“We don’t know what’s going to happen,” conceded Modinat “Abby” Kotun, a Haynes and Boone lawyer in Houston who authored a recent practice alert on the issue along with partner Matthew Deffebach. “No harm in just waiting to see what happens.”

In 2016, under the previous administration, OSHA issued a rule aimed at bolstering electronic tracking of workplace injuries and illnesses. In addition to the public disclosure requirements, it requires employers to establish reasonable reporting procedures, explicitly barring them from retaliating against employees and requiring them to inform employees of their right to report workplace injuries and illnesses.

For now, the delay is welcome for companies that were concerned about the efforts required for compliance, or the public exposure it could bring. And, Kotun said, it’s calming employers that had been alarmed by privacy issues the new electronic reporting rule might raise.

If the rule had become effective, some employers suggested that hackers or other criminals could take advantage of records identifying individual injuries, using those details to determine employees’ identities and then misusing the data.
One of Haynes and Boone’s clients, a large employer, had already begun to work with an outside vendor to start preparations for submitting the data until the company learned about the delay, Kotun said.

“It was going to be hard for them,” Kotun said about the efforts needed for that company’s managers to meet the requirement.

In federal courts, employer representatives have challenged the rule changes, arguing they go beyond the scope of OSHA’s statutory authority.

From the employees’ perspective, the delay represents a setback, said Benny Agosto Jr. of Houston’s Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz, who frequently represents injured workers.

“If you look at the labor statistics, the folks that get injured the most are Hispanic and often undocumented workers,” Agosto said.

By not requiring employers to publicly report and tally injuries, the federal government is making it harder to police company policies and to limit on-the-job accidents, Agosto said. “Historical records would show the bad actors,” he said.’

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