It’s not very often that epidemiologists, let alone state government epidemiologists, file lawsuits or step intentionally into litigation. But for the second time in two years, the Council of State and Territorial Epidemiologists (CSTE) has joined with the American Public Health Association (APHA) — another organization rich with epidemiologists — to challenge rollbacks of an OSHA injury reporting rule. The most recent case is a lawsuit filed this week in the U.S. District Court for the District of Columbia by Public Citizen Health Research Group (HRG), CSTE, and APHA.
The groups charge that OSHA illegally suspended provisions of a regulation that require certain employers to submit injury and illness records to the agency. They correctly argue that OSHA cannot change or suspend a regulation without following public notice-and-comment procedures as stipulated in the Administrative Procedure Act. OSHA says in response that it is reconsidering the rule and thus suspending the requirement for employers to electronically submit injury records.
CSTE is a membership organization of public health epidemiologists who work for state and territorial agencies. In their declaration to the court, CSTE notes:
“its members work closely with the CDC to track work-related injuries, relying on multiple sources of data, including reports by employers to regulatory agencies. …[They] …. have relied on reports from employers to identify serious and immediate threats to workplace health, including sudden death from methylene chloride in paint strippers used by trades workers; the inhalation of solvent vapors during gauging of tanks by oil and gas workers; serious and disabling injuries from repetitive work in poultry and meatpacking plants; and back injuries in nurses due to patient lifting and transferring.
…”CSTE epidemiologists have used both state and national data to track the incidence of these work-related injuries and diseases, have performed public health investigations to understand the underlying risk factors that exist in the workplace, and have used this information to implement public health recommendations and inform regulatory action that has led to the prevention of these serious and disabling conditions. If the electronic submission and public disclosure requirements in the Rule are suspended, CSTE members would lose access to an important source of timely, establishment-specific injury and illness information.”
Importantly, CSTE participated in the rulemaking process when OSHA was considering the new injury reporting requirements for employers. In comments submitted by CSTE to OSHA in March 2014, the epidemiologists described the potential public health benefit of the injury records.
APHA is in the same situation. It was also active in OSHA’s 2014 rulemaking and is joining CSTE and Public Citizen to challenge the agency’s illegal rollback of the rule.
In the lawsuit filed this week, APHA notes:
“[Our] members often use information reported to government agencies and made available to the public to analyze threats to human health. …APHA members collaborate with community-based organizations that educate workers about on-the-job safety.
“The data that OSHA will receive and make available to the public under the Rule will assist APHA members in developing training and education programs. APHA members will use the data to map the injury incidence experience of workplaces in the localities served by the organizations. This information will enhance the safety training curriculum with community-specific and employer-specific data, and facilitate health promotion activities related to workplace safety.”
Also in the lawsuit, the HRG notes its long history using publicly available government data to watchdog agencies’ effectiveness in protecting workers and consumers. Besides their policy expertise, HRG brings years of litigation experience to compel OSHA to act in the best interest of workers health and safety.
This is the second time in two years that HRG, APHA, and CSTE have joined in a lawsuit about this particular OSHA injury reporting rule. In March 2017, they intervened in a lawsuit brought by the National Association of Home Builders (NAHB), the National Chicken Council, and other business trade associations groups to oppose the OSHA regulation. The business groups assert, among other things, that the injury reporting rule violates their Constitutional rights. The epidemiologists and public health professionals became parties to the litigation in order to argue in support of the OSHA requirements.
In early 2017, while the Trump administration was settling in, a U.S. district court judge (in the Western District of Oklahoma) placed a “stay” on the NAHB’s lawsuit. He ordered OSHA to keep the court apprised every 90 days of its plans to modify the rule.
In its four reports since then, OSHA told the court that it would be proposing changes to the injury reporting rule. The agency’s most recent report, dated July 8, OSHA said its notice of proposed rulemaking to modify the rule was in the clearance process. Today—-as I was finishing up this blog post—OSHA released a pre-publication copy of the proposed changes.
So what does OSHA’s proposed rule mean for the CSTE, APHA, and HRG’s lawsuit? I think the arguments the epidemiologists and other public health professionals have made remains valid. OSHA violated the Administrative Procedure Act when it suspended the injury reporting rule. Epidemiologists and other health advocates have lost the benefit of the rule as a result, but they are not interested in data just for data sake. Ultimately, their work informs and advances injury and illness prevention.
If this rule is rolled back, data that could and should be used to identify hazards and implement protections will remain off limits to the public. It is workers who will lose out.