OSHA Update—Delayed Enforcement of Anti-Retaliation Provisions for New Reporting Rule

25 July 2016 Labor & Employment Law Perspectives Blog

The Occupational Safety and Health Administration (“OSHA”) has announced that it will delay enforcement of the anti-retaliation provisions in its new workplace injury and illness reporting rule.  Originally, it was scheduled to go into effect on August 10, 2016, but enforcement of the anti-retaliation provisions will now begin on November 1, 2016.  OSHA stated that it intends to “conduct additional outreach and provide educational materials and guidance” to employers during the delay.

In a previous post on the Work Knowledge Blog, we discussed the final rule on workplace injury and illness reporting.  As noted in that post, employers need to ensure that their policies and practices for workplace injury and illness reporting are reasonable and do not serve as a deterrent to reporting.  For example, while not prohibited in the new rule, the new rule could affect how employers draft and actually implement their drug and alcohol testing policies and may also place accident-free or safety incentive programs under OSHA’s scrutiny as well.  Prior to the new effective date, employers should carefully review those policies with an eye towards compliance with the new rule.

The extension of the effective date gives employers additional time to conduct this policy review.  And, in the meantime, it behooves employers to monitor new developments closely.  Specifically, some developing litigation in a Texas federal court may ultimately impact the anti-retaliation provisions in the new rule.  This month, a Complaint for Declaratory and Injunctive Relief was filed in the United States District Court for the Northern District of Texas, captioned TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D.  The Complaint challenges the new rule to the extent it prohibits or limits safety incentive programs and/or mandatory post-accident drug testing programs.  As of the date of this post, the case is in the briefing stages on the Plaintiffs’ request for injunctive relief to prevent OSHA’s implementation and enforcement of certain anti-retaliation provisions of the new rule.  The case is pending before United States District Court Judge Sam A. Lindsay.

We will provide further information as it becomes available.

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