Posted with permission from Jordan Barab.

Just days after OSHA rushed its final “Electronic Recordkeeping” regulation into OMB review, the US District Court for the District of Columbia ruled  against OSHA’s motion to dismiss a lawsuit filed by Public Citizen concerning OSHA’s suspension of requirements in its “electronic recordkeeping” regulation. 

The court found that Public Citizen did, in fact, have standing to sue OSHA and ruled that OSHA’s action to suspend the recordkeeping rule “was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline,” a possible violation of the Administrative Procedures Act which requires notice and comment rulemaking — not just a notice on the OSHA webpage — for such change. 

On the other hand, the court ruled against a preliminary injunction, arguing that Public Citizen will not suffer “irreparable harm” if the data is delayed.

Background

For those of you who haven’t been following along, in 2016 OSHA amended its recordkeeping regulation to require employers to annually submit to OSHA, by electronic means, injury and illness information that employers were already required to keep.

Establishments with 250 or more employees in industries that are routinely required to keep records are required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA’s designee once a year. Small businesses with 20 to 249 employees in certain designated industries are only required to submit information on the summary form 300A. Employers were already required to collect this information. The only change was that they were now required to send it into OSHA through a web-based electronic system that OSHA would develop.

The 2016 rule had two phases. The first phase was submission of the Form 300A summary data which, after several delays, took effect last year. The second part, sending in information from the 300 Form and the more detailed 301 data, was supposed to take effect this year. But last November OSHA put a notice on its website stating that employers would not be required to submit the 300 or 301 forms pending new regulatory action.

Last July, OSHA proposed to rescind the requirements to send in the 300 and 300 forms that would have required certain employers to send to OSHA detailed information on the OSHA 300 and 301 forms. And earlier this week, OSHA rushed the final standard into OMB review, months ahead of the agency’s original schedule.

Public Citizen Lawsuit

Following OSHA’s suspension of the requirements, Public Citizen and two other groups (the American Public Health Association and the Council of State and Territorial Epidemiologists) filed a lawsuit against OSHA arguing that the agency had broken the law by violating the Administrative Procedures Act (which governs agency rulemaking procedure). Public Citizen argued that OSHA’s suspension of the reporting requirements deprived them of “access to an important source of timely injury and illness information, which will make it more difficult for each of them and their members to analyze the causes of workplace injuries and illnesses and work toward preventing them.”

According to a Public Citizen attorney: 

They therefore asked the court to force OSHA to implement the regulation. 

OSHA fired back, stating that Public Citizen did not have standing to sue for two reasons. First, OSHA argued, the suspension of the reporting requirements was just an allowable exercise in “enforcement discretion.” OSHA has the “discretion” in some cases, not to enforce a rule on the books, or to temporarily delay enforcement deadlines.

Second, OSHA argued that even if the courts forced OSHA to collect the data, Public Citizen wouldn’t be harmed because OSHA could use Freedom of Information Act (FOIA) confidentiality exceptions to keep the public from ever accessing the data.

Today’s court decision was not on the merits of the case, but rather on whether Public Citizen had standing to sue or the case should be dismissed as OSHA argued.

The court found that Public Citizen did have standing because OSHA’s action was not just an allowable exercise of enforcement discretion, but rather that OSHA had completely suspended a regulatory requirement that the information be sent in by a certain deadline. The court found therefore that Public Citizen had standing to sue on the merits of the case.

OSHA had also argued that even if Public Citizen won the case regarding the legality of OSHA’s actions suspending the collection requirement, there was no harm because OSHA had no intention of making the data public. The agency argued that it would be able to refuse access to the material under FOIA exceptions and Public Citizen would never get the data anyway. 

But the court disagreed with OSHA’s argument, finding “it highly
unlikely that OSHA can withhold much of the information contained on Forms 300 and 301 submitted under the Electronic Reporting Rule.”

First, OSHA wasn’t collecting confidential information, and even if there pieces of the data that OSHA collected could be classified as confidential, that data could be easily separated from the vast majority of the data that would not fall under the FOIA confidentiality exceptions.

Public Citizen had asked for a preliminary injunction that would have forced OSHA to implement the regulation, but the court denied that, finding that any “harm” Public Citizen suffered was not “irreparable.” In other words, even if they Public Citizen later won the lawsuit, the 2017 data could still be delivered — late, but getting the data late, did not constitute irreparable harm.

And even if OSHA totally rescinds the requirements to send the 300 and 301 data into OSHA, the court could still decide that OSHA was obligated require employers to send in the 2017 data if the court found that OSHA had illegally suspended the requirements before issuing a new rule.

 The case therefore moves to a full court hearing.

What’s Next?

Public Citizen attorneys were pleased with the court’s decision, feeling that the court seriously undermined OSHA’s main arguments about confidentiality and enforcement discretion. 

Ultimately, of course, we may only be arguing about one year of data. This case concerns OSHA’s failure to implement the requirement applying to Calendar Year 2017 data — the only deadline that has so far been missed. (The next deadline — for 2018 data — is in March 2019, which may explain OSHA’s rush to issue the final regulation ahead of schedule.)

The next step for Public Citizen may be a motion for summary judgment, that if successful, would force the agency to immediately implement the regulation, forcing the agency to require employers to send in the 2017 data.

After the revised OSHA regulation is issued, lawsuits seeking to overturn it will inevitably follow. We have argued here that OSHA’s justification for rescinding the requirements are weak — or in legal terms “arbitrary and capricious.” 

This court decision, with its finding that release of the data does not risk revealing confidential information and would therefore be subject to FOIA, will not stop OSHA from issuing the final rule, but will likely undermine much of the agency’s rationale for rescinding the requirements in the rule.

We shall see if the courts agree. Stay tuned.

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