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

25 July 2016 Labor & Employment Law Perspectives Blog
Authors: Taylor Eric White

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.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Authors

Related Services