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  • Writer's pictureAdele L. Abrams, Esq., CMSP

Public Citizen Wins FOIA Suit on Injury Data, Files New FOIA Suit Over COVID-19 Enforcement

Public Citizen, a public interest group, has sued OSHA to uncover records pertaining to the agency’s development of enforcement procedures that initially promised not to take enforcement action against the poultry industry if the employer made “good faith efforts” to comply with COVID-19 workplace safety guidance. A complaint was filed September 8, 2020, in US District Court (D-DC) alleging that the US Department of Labor failed to timely respond to the pending Freedom of Information Act (FOIA) request for communications internally within OSHA/DOL and also with trade associations and representatives of the protein sector. The FOIA request was initially filed on May 1, 2020, seeing all records pertaining to an April 2020 memo where OSHA promised “enforcement discretion” against employers that followed OSHA and CDC guidance on COVID-19 in the workplace.

Earlier this summer, Public Citizen prevailed in another FOIA action against OSHA, in which it sought the employer injury/illness data that had been submitted electronically to OSHA under its revised E-Recordkeeping rule (29 CFR Part 1904), along with a second public interest group that also sued. See Center for Investigative Reporting v. Department of Labor, No. 4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal. June 4, 2020); Public Citizen Foundation v. United States Department of Labor, No. 1:18-cv-00117 (D.D.C. June 23, 2020).

The agency was ordered to release the employer data to Public Citizen, and rather than appealing, OSHA also posted the data on its own website. That information is now public facing and searchable by employer name to determine its injury/illness history. The searchable website include CY 2016, 2017 and 2018 data so far, and is:

OSHA issued a disclaimer concerning the data, stating “The fact that an employer provided data does not mean that the employer is at fault, that the employer has violated any OSHA requirements, that OSHA has found any violations, or that the employee is eligible for workers' compensation or other benefits.”

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