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States Sue OSHA for Giving Up

By George Khoury, Esq. on March 08, 2019 | Last updated on March 21, 2019

In an interesting but not so surprising twist, several state attorneys general are suing a federal agency for violating the Administrative Procedure Act and changing a rule arbitrarily and capriciously.

The case, filed on behalf of New York, Maryland, Massachusetts, Minnesota, Illinois, and New Jersey, alleges that the Department of Labor and OSHA improperly rescinded the 2016 rule requiring large employers to report workplace injuries and illnesses. The states contend that the 2016 rule would have done quite a bit to help, in addition to improving transparency and accountability, which are often lacking when it comes to workplace safety.

Goodbye Guidance

In short, in 2016, OSHA laid out a rather well-thought-out plan for large employers to report the information they were already required to track in a way that would allow OSHA to publish it. The idea was that if states and the public had that information, they could do more to improve conditions for worker safety.

However, a few years and one administration later, OSHA abruptly decided to forgo the new reporting requirement, and as the lawsuit points out, none of the rationale or explanations provided made logical sense. For example, they assert that the reporting and publishing would violate worker privacy, however, the information that would have been published would be anonymized.

The states seek both injunctive and declaratory relief, requiring OSHA to reinstate the 2016 rule.

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