By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: According to several states that have sued the Occupational Safety and Health Administration in Federal Court, the Agency did not provide sufficient justification to rollback the electronic reporting rule for large employers.  Complaint, State of New Jersey, et al., v. Acosta, No. 19-cv-621 (D. DC March 6, 2019).

The complaint, filed by the States of New Jersey, Illinois, Maryland, Massachusetts, Minnesota, and New York, claims that OSHA’s “illegal and unjustified attempt to rollback its 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 allege standing to make the claim based on their “quasi-sovereign interest in the health and safety of all their residents.”  The states also argue that “in making this about-face, OSHA failed to provide the sufficient justification that the Administrative Procedure Act (APA) demands.”  The states claim that “OSHA must ‘provide a reasoned explanation’ for its action, which includes ‘show[ing] that there are good reasons for the new policy’,” citing to Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  “That burden matters especially where the ‘new policy rests upon factual findings that contradict those which underlay its prior policy’.”  Id. at 2126 (quoting Fox Tele. Stations, Inc., 556 U.S. at 515-16).

We have blogged frequently on OSHA’s electronic reporting rule.  See e.g., On And On We Go – Coalition Groups Sue DOL for the Rollback Rule, OSHA Issues New Rule that Companies are Not Required to Submit OSHA 300 and 301 Forms Electronically, California Enacts New Record-Keeping Mandates in Response to Changing Federal ProgramRoller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

In this latest action, the six states ask for declaratory judgment that the new final rule is unlawful and a re-imposition of all electronic reporting requirements.

We will continue to watch and report on the ongoing machinations over these rules.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.