A VIEW FROM THE HILL: Political News
By: Craig Brightup, The Brightup Group LLC
President Trump’s actions on federal regulations have worked so well that there’s basically been a freeze on new regulations while older ones are repealed or pared back. But an exception is the Occupational Safety and Health Administration (OSHA), which has continued to pursue an Obama-era regulatory agenda.
One of the standards drafted under President Obama that went into effect in the Trump Administration is the silica rule. This rule shouldn’t have become effective for construction last year, because the Permissible Exposure Limit and Action Level are too low and work requirements and engineering controls are unrealistic in many situations. Thus, OSHA says it will publish a Request for Information to start fixing the rule, but the enforcement moratorium is over and OSHA inspectors are issuing silica citations.
Another dubious policy from OSHA is its proposed rulemaking to revise the electronic injury and illness reporting rule that was issued by the Obama Administration and formerly known as the Improve Tracking of Workplace Injuries and Illnesses rule. OSHA’s recent Notice of Proposed Rulemaking (NPRM) would modestly lighten the reporting burden for employers, but is silent on issues that most concern the business community and actually adds a controversial new disclosure requirement.
OSHA issued the original Tracking of Workplace Injuries and Illnesses rule in 2016 and it required establishments with 250 or more employees to electronically submit to OSHA recordkeeping data on the 300A, 300 and 301 forms. The rule also required certain establishments with 20 – 249 employees to submit their 300A forms based on a list sorted by the North American Classification System that includes construction.
In addition, OSHA added a “whistleblower” provision that employers must post a “reasonable” policy on how employees are to report their injuries and safety violations. Furthermore, the rule’s preamble states that most safety incentive and post-accident drug testing programs would be considered “unreasonable” and in conflict with the statute’s anti-retaliation (whistleblower) protections.
On July 8, 2016, the National Association of Manufacturers and other business groups sued OSHA, targeting the impact on safety incentive and drug testing programs under the whistleblower provision. On Jan. 14, 2017, the U.S. Chamber of Commerce and another set of business groups filed a second lawsuit in the U.S. District Court for the Western District of Oklahoma seeking a permanent injunction of the entire rule.
Both cases are stayed to allow the Trump Administration time to determine how to respond and OSHA must submit updates every 90 days to the court in Oklahoma. But OSHA’s new rulemaking is so minimal that plaintiffs might reactivate the lawsuits.
The NPRM would change reporting requirements for establishments of 250 or more employees to just 300A forms, but it’s silent on the whistleblower provision and scrubbing sensitive information from submissions before posting on the OSHA website. And it would add a controversial new requirement that establishments must include their Employer Identification Numbers (EIN) on their submissions.
In the meantime, employers should have submitted 300A forms electronically to OSHA by July 1, 2018. Also, on April 30, 2018, OSHA clarified that employers in state-plan states where the state has not yet issued a companion regulation still must meet the federal requirements. Finally, in 2019 and annually thereafter, the 300A form must be electronically submitted by March 2.