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March 7, 2019

ATTORNEY GENERAL RAOUL FILES LAWSUIT OVER FEDERAL ROLLBACK OF WORKPLACE INJURY, ILLNESS REPORTING RULES

Chicago — Attorney General Kwame Raoul, as part of a coalition of six attorneys general, filed a lawsuit to stop the federal government from implementing a new rule that would weaken employers’ public reporting obligations of workplace injuries and illnesses.

Raoul and the coalition filed the lawsuit Wednesday in U.S. District Court for the District of Columbia challenging an “illegal and unjustified” attempt by the Occupational Safety and Health Administration (OSHA) to roll back requirements it issued in 2016 for the electronic reporting of workplace injury and illness information.

In 2016, OSHA explained that the electronic reporting requirements were vital because they would help OSHA and states better target workplace safety enforcement programs, encourage employers to abate hazards before they resulted in injuries or illnesses, empower workers to identify risks and demand improvements, and provide information to researchers who work on occupational safety and health issues. Today’s lawsuit highlights that, just three years later, OSHA’s explanation for the repeal of the 2016 reporting requirements does not adequately justify this change.

“The 2016 requirements have helped improve workplace safety, which benefits everyone,” Raoul said. “Having sound data on workplace injuries allows employers to improve safety, which could reduce costs in defending workers’ compensation claims.”

In the lawsuit, Raoul and the coalition note that the federal Administrative Procedure Act (APA) requires an agency to “provide a reasoned explanation” for its new rules. Although OSHA now claims that the workplace safety information is not useful and that the electronic reporting might instead compromise worker privacy, the complaint alleges that OSHA has not “come close to justifying its views that the reporting of workplace injuries and illnesses had few benefits to states, workers and researchers, or that it puts workers’ privacy at risk.”

Because it lacks any valid rationale, the lawsuit argues, the new OSHA rule fails to meet APA criteria, has no legal basis, and should be vacated by the court. The lawsuit also asks the court to order that “all aspects” of the original OSHA reporting rule promulgated in 2016 be implemented.

The 2016 rule was devised with input from private businesses, industry groups, labor unions, academics, state agencies, researchers, private citizens and others. It required all large employers – those with 250 or more employees -- to submit to OSHA information from three different workplace injury and illness tracking forms that employers are required to maintain anyway.

At the time, OSHA took certain steps to reconcile its new reporting requirement with the need to protect privacy. For example, it elected not to collect data from certain fields on the reporting forms - such as employee names and the names of treating physicians - because collecting and publishing such data could create a privacy risk.

The lawsuit filed by Raoul and the coalition notes that the administration now dismisses “out of hand” the privacy protections OSHA devised and recommended in 2016, and is mounting a host of other “inconsistent” and “illogical” arguments to support its effort to diminish the reporting obligation of large employers.

Joining Raoul in filing the lawsuit were the attorneys general of Maryland, Massachusetts, Minnesota, New Jersey and New York.

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