In response to OSHA’s announcement in May this year that the agency would not require the electronic submission of 300 Logs or 301 Forms for employers with establishments of 250 or more employees, Public Citizen,  a consumer rights advocacy group, filed a lawsuit in the U.S. District Court for the District of Columbia challenging OSHA’s suspension of the requirement to electronically submit the 300 Log or 301 Forms.

OSHA suspended the electronic submission of the 300 Log and 301 Forms because the agency was in the process of developing a proposed rule amending the requirement under section 1904.41(a)(1). That proposed rule was issued on July 30, 2018 and the comment period is still open and will end on September 28, 2018.

On September 7, 2018, Public Citizen, filed a motion seeking a preliminary injunction.  Public Citizen is requesting the federal court to order OSHA to lift the suspension of the electronic submission of the 300 Log and 301 Forms and require OSHA to require and collect from employers the 300 Log and 301 Forms that were due on July 1, 2018.

In its motion, Public Citizen alleges that OSHA violated the Administrative Procedures Act (“APA”) by indefinitely delaying the electronic submission of the 300 Log and 301 Forms without going through notice and comment rulemaking.  Further, the group alleges that OSHA’s actions are arbitrary and capricious in violation of the APA because the agency provided no rationale basis for the change in its position.

Public Citizen claims that OSHA’s failure to collect this data will irreparably harm the group because the data “would have provided [Public Citizen] access to workplace injury and illness data from the covered establishments, which they would have analyzed in the course of their work on workplace safety and used to advocate for workplace safety protections.” However, there is a significant question as to whether there is any legal requirement for OSHA to make such information publically available, and OSHA has made clear recently that it would not make such information publically available.   OSHA has stated that it believes such data is exempt from release under the Freedom of Information Act.

It is anticipated that OSHA will file an opposition to Public Citizen’s motion for a preliminary injunction.

 

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.

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