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March 28, 2001
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Arguing that OSHA’s new recordkeeping rule is “arbitrary, capricious, and an abuse of discretion,” the National Association of Manufacturers went to court March 19 seeking to have the requirements thrown out.

Years in the making, the rule is scheduled to go into effect January 1, 2002 — though NAM contends a 60-day delay issued by the Bush administration on all regs released in the last days of the Clinton era pushes the effective date back to March 1, 2002.

NAM’s move came one day before President George W. Bush handed business groups their biggest victory over OSHA in years by signing the repeal of the agency’s ergonomics standard.

In an 18-page complaint filed in the U.S. District Court for the District of Columbia by Baruch A. Fellner, the same attorney who led NAM’s charge against the ergo standard, the 14,000-member association served up more than a dozen arguments for why the new recordkeeping requirements deserve the same fate as the ergo standard. Among them:

 

  • New recordkeeping requirements will force employers to record many injuries and illnesses on Form 300 that are either partially or completely unrelated to workplace activities.

    NAM argues that OSHA has expanded the definition of “work relatedness” to include activities that not only directly caused injuries or illnesses, but also events or exposures that contributed to injuries or illnesses or significantly aggravated a pre-existing conditions.

    Pain or another symptom of a nonwork-related injury or illness that is experienced on a job that otherwise would not cause such pain becomes the “fault of the workplace and the employer must record the injury or illness,” according to NAM.

     

  • Employers will be forced to record “most if not all preexisting employee conditions as work-related” because it will be impossible to prove that jobs did nothing whatsoever to contribute to those conditions, NAM claims. This is because OSHA narrowly limits “preexisting condition” only to injuries and illness that resulted solely from an event or exposure outside the work environment.

     

  • These definitions will cause employers to err on the side of caution and record “every injury and illness that is conceivably work-related in some miniscule way,” NAM argues.

     

  • Forcing employers to record all events of workplace violence other than intentionally self-inflicted injuries as work-related is too broad, “attributing events completely outside of the employer’s control, including psychopathic behavior, to the employer…”

     

  • OSHA’s new recording trigger for hearing loss — a Standard Threshold Shift of 10 dB(A) — does not meet the criteria for recording injuries or illnesses on Form 300 because the extent of hearing loss “is not considered a material impairment by the medical community, by state workers’ compensation systems, or in applicable OSHA standards.”

     

  • Requiring employers to record all work-related needle stick injuries and cuts from sharp objects that are contaminated with another person’s blood or potentially infectious material — “even though these injuries do not meet the seriousness threshold” for recording injuries and illnesses — exceeds OSHA’s recordkeeping mandate.

     

  • “Cluttering an employer’s injury and illness report with illnesses and injuries not related to the workplace both undermines the value of such reports” and exceeds OSHA’s authority. Using such faulty data, OSHA will waste its resources targeting inspections in workplaces where “the cure for such injuries is beyond employer control.”

     

  • Employee privacy in injury and illness recordkeeping is threatened by forcing employers to provide the names of employees and their injuries to employees and their representatives, except for a limited class of “privacy concern cases.”

     

  • Employers are required to take action beyond recordkeeping, which means the rule is actually a standard that prescribes procedures to ensure a safe workplace — not a regulation that simply calls for collecting and disseminating records, according to NAM.

    OSHA published the recordkeeping requirements as a regulation. But NAM argues that provisions require employers to ensure that employees follow doctors’ orders for taking time off or complying with work restrictions.

     

  • Employers are forced to make decisions about whether or not to record injuries and illnesses with little guidance from OSHA, leaving them open to future penalties if OSHA disagrees with the employer’s judgment.

     

  • Broad and vague recordkeeping requirements will impose “substantial costs” on employers. These include the costs of administering an unclear regulation, challenging recordkeeping decisions, possible OSHA penalties for not recording alleged work-related cases, and the cost of targeted inspections and citations triggered by “inflated and erroneous” lost workday injury and incidence rates.

     

  • Attributing nonwork-related injuries to employers will damage employers’ reputations with their workers and result in a loss of goodwill, NAM claims.

    NAM wants the court to order OSHA to immediately rescind the final recordkeeping rule and publish immediately a notice to that effect in the Federal Register.

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