In its first completed rollback of a previously issued regulation in the Trump administration*, the Occupational Safety and Health Administration today announced its final recordkeeping regulation that eliminates the requirement that certain employers send in to OSHA detailed information about injuries and illnesses that employers already collect. The Office of Information and Regulatory Affairs announced that it had rushed to clear the rule last week. The full 104 page text of the new rule and the preamble can be found here.
The main excuse OSHA uses for the rollback is “to protect worker privacy.” Ignoring the fact that employers were not required to send any confidential information to OSHA in the first place, the agency’s press release argues that
By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.
The new rule does not affect the current requirement that employer send in to OSHA the summary of injuries and illnesses (OSHA Form 300A), although the agency makes clear that they do not intend to release the summary information to the public for at least 4 years because they allege that the data is not subject to the Freedom of Information Act which would normally require public disclosure. OSHA’s reason is that “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]
This is simply the business community’s attempt to ensure that the public have as little information as possible about injuries and illnesses — and why they happen — in American workplaces.
Regulatory experts have a highly technical term for such explanations: “lame.”
First, an employer’s ability to anticipate an inspection is actually a good thing because it may encourage the employer to fix unsafe conditions. Second, in previous enforcement programs using similar data, OSHA actually warns high risk employers that they are on a focused inspection list, and encourages them to use OSHA’s compliance assistance resources to eliminate unsafe conditions before they are inspected. In other words, public disclosure of such information is actually a feature of this program, not a bug.
When this regulation was initially issued under the Obama administration, OSHA intended not just to make the information available to interested parties, but to post it on the agency’s website so that potential workers would be able to judge the relative safety of their employers, and employers could use the information to benchmark their safety record against similar employers.
OSHA received 1880 comments on the rollback proposal which was rushed through OSHA and OIRA to ensure its completion before a possibly unfavorable court decision.
Will the Roll-back Regulation Stand Up in Court?
Corks are undoubtedly popping at the Chamber of Commerce this morning, although they wanted OSHA to repeal the entire regulation, including collection of the 300A summary and the language prohibiting employers from retaliating against workers for reporting injuries and illnesses.
Their celebration may be short lived, however. Just as night follows day, lawsuits will follow this announcement. And statistically, a lawsuit is likely to be successful in this administration. The New York Times today published an article today detailing how the Trump administration has chronically ignored the Administrative Procedure Act which governs agency rulemaking. The article notes that:
An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged, and the courts have found for the litigants 28 times…In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.
Information is Power
The reasoning used by OSHA seems similar to the weak reasoning used in the agency’s proposal. (You can read my analysis of the proposal here.)
But in short, what we have here is the business community’s continuing effort to ensure that the public has as little information as possible about workplace injuries and illnesses — and why they happen — in American workplaces. Information is power. And the more power that the Trump administration and its business supporters can keep from workers and the public, the better.
This blog was originally published at Confined Space on January 24, 2019. Reprinted with permission.
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).