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OSHA Suspends New Final Rule Anti-Retaliation Provisions until December

Oct 26, 2016
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OSHA will suspend enforcement of the anti-retaliation provisions in its Final Rule to Improve Tracking of Workplace Injuries and Illnesses until December 1, 2016. The U.S. District Court for the Northern District of Texas requested the delay to allow it additional time to consider a motion that might challenge provisions of the rule.

This is the second delay to enforcement of the anti-retaliation portions of the Final Rule which was announced in May of this year—with different components scheduled to take effect at different times.The effective date for enforcement of anti-retaliation provisions was originally scheduled for August 10, 2016, with the portions of the rule containing new requirements for data submission scheduled to take effect in January of 2017.

Enforcement of the anti-retaliation provisions was already delayed once prior, until November 1, 2016, so that OSHA could “conduct additional outreach and provide educational materials and guidance for employers” on those anti-retaliation portions. (The data submission portions of the rule remain unchanged and on schedule.)

The anti-retaliation provisions in question allow OSHA to cite employers for retaliation even if an employee does not file a complaint. Section 11(c) of the Occupational Safety and Health (OSH) Act already prohibits employers from “discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness.” However, OSHA may only act if an employee files a complaint with the Agency within 30 days of the retaliation. These anti-retaliation provisions of the Final Rule to Improve Tracking of Workplace Injuries and Illnesses would change that. If an OSHA investigation found that an employee had been retaliated against by an employer, OSHA could cite that employer even if the employee had never reported the retaliation.

The Final Rule also clarifies that employers may not have workplace programs in place that deter or discourage employees from reporting incidents. Additionally, it prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.

The case presently before the court — TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D.Tex) — was raised by industry groups in Texas seeking to challenge the retaliation portions of the Final Rule.

This most recent delay is likely intended to give the court time to consider the Plaintiffs’ arguments that were filed in an emergency motion last month. In that motion, the Plaintiffs argue that:

  • OSHA is claiming “virtually unlimited authority to enact a new enforcement process for recordkeeping retaliation claims” and inappropriately ignoring requirements that would serve as counterbalances to its authority.
  • OSHA is mistaken in its view that the Final Rule does not warrant further review by the court system.
  • The Final Rule would constitute an “arbitrary reversal of decades of policy” by prohibiting “incident-based safety programs or post-accident drug testing programs.”
  • The Final Rule — as currently written — would actually hurt workers because “incentive programs and post-accident drug testing programs make workplaces safer [and] by prohibiting such safety programs, the New Rule threatens irreparable harm to Plaintiffs by increasing the likelihood of injuries to their employees.”

Whether or not these arguments will sway the court remains to be seen. However, last month’s overturning of stricter enforcement of OSHA’s Process Safety Management (PSM) standard by a D.C. Circuit court serves as a bracing reminder that legal challenges to OSHA can sometimes succeed.

OSHA’s public announcement delaying the anti-retaliation enforcement until December 1, 2016, does not contain information about the Agency’s contingency plans if any portions of the Final Rule are struck down.

Whatever the future holds, ensuring that your injury prevention and incentive programs and employee drug testing stay up-to-date and in compliance remains vital. Tools from VelocityEHS can help! Our solutions can let your team take part in making your workplace safer with new mobile-enabled near miss or incident notification and reporting, allowing you to more effectively manage incidents across your organization. You can also track who has attended safety meetings, who has participated in incentive programs, and who has completed in-person or online safety trainings. In addition, our Audit & Inspection tool can help companies audit drug testing policies, and evaluate safety incentive programs. You can also customize and configure our solutions to specifically track drug testing qualified incidents as needed. For more information, visit our website or call us at 1.888.362.2007.

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