OSHA Delays Enforcement of Anti-Retaliation Provision Until December 1

OSHA has decided once again to postpone enforcement of the anti-retaliation provision contained in its new injury and illness tracking rule until December 1 in order to allow a federal court time to review a motion challenging the provision. OSHA initially intended to implement the provision on August 10, 2016. At that time, the roll-out was delayed to allow time for outreach to the community the rule affects.

The final rule advocates an employee’s right to freely report injuries and illnesses without fear of employer retaliation. In theory, the more accurate reporting will enable researchers to more closely study injury causation in the workplace. The reporting rule specifically amends the anti-retaliation provision to allow OSHA to take action regardless of whether an employee filed a complaint with OSHA, whereas the present rule requires an individual to file an OSHA complaint within 30 days.

The present adjournment arises from TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D, a matter pending in the U.S. District Court for the Northern District of Texas. In Texo, the court will consider whether employers may be prohibited from using drug testing as a form of adverse action against employees who report injuries or illness— the idea being that post-incident drug testing would deter reporting, contrary to the spirit of the rule.

The final rule is available here.

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