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OSHA Anti-Retaliation Rules

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction filed against the Occupational Safety and Health Administration (OSHA) regarding the anti-retaliation provisions of OSHA’s new Improved Tracking of Workplace Injuries and Illnesses Regulation (See LU from November for discussion of injunction).

OSHA announced new regulations in May 2016 addressing reporting of injuries and illnesses. These rules included certain anti-retaliation provisions that potentially restrict safety incentives, immediate injury reporting rules, and post-accident drug testing. The rules initially were to take effect in August.

Then, as we reported, OSHA announced in a press release on July 13, 2016, that it was pushing back the effective date of the anti-retaliation provisions of the final rule from August 10 to November 1, 2016. The purpose of the delay was so OSHA could conduct “additional outreach and provide educational materials and guidance for employers.”  On October 20, 2016, the federal court in the Northern District of Texas prompted OSHA to self-impose an additional delay of the anti-retaliation provisions of the final rule until December 1, 2016. Accordingly, the new deadline for the effective date of the anti-retaliation provisions in the final rule is December 1, 2016.

Employers can meet this requirement by posting the current version of the OSHA poster or by otherwise informing their employees of their right to report work-related injuries and illnesses free from retaliation. For example, employers could also meet this requirement by providing a written or e-mail notice to each employee.

The OSHA Poster states: All workers have the right to: Raise a safety or health concern with your employer or OSHA, or report a work-related injury or illness, without being retaliated against.

Now that the Texas federal district court has denied the preliminary injunction, OSHA’s regulations take effect on December 1. After that date, OSHA may investigate complaints by employees that suffered retaliation for reporting an injury by virtue of an employer’s policies, such as post-accident testing, incentive programs (where employees as individuals or as a group lose, or do not receive, certain pay), or late reporting of an injury by the employee.

Starting December 1, OSHA will be able to issue citations and penalties and require abatement, including reinstatement and financial compensation to terminated employees, order payment of revoked incentives and other remedies to make the employee whole for violations of the anti-retaliation provisions of the final rule. Employers are also required to provide information to employees regarding injury reporting and the requirements that prevent employers from retaliating against employees. 

While the decision only denies the preliminary injunction, and a permanent injunction is still a possibility later, the regulation will take effect this week, causing many employers to change their policies pending the outcome of the case. There may also be regulatory changes following the change of the presidential administration early next year. But for now, these regulations are the law, and ISRI members should review their policies.

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