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Implementation of OSHA anti-retaliation rule delayed until November
By Katherine Fechte on August 10, 2016 at 11:20 AM

Instead of taking effect Aug. 10, OSHA anti-retaliation provisions impacting post-accident drug-testing policies are now deferred until Nov. 1.The enforcement of anti-retaliation provisions in new injury and illness reporting regulations for employers has been delayed until Nov. 1, 2016.

On May 11, 2016, the Occupational Safety and Health Administration (OSHA) published the final rule revising its regulations on the recording and reporting of occupational injuries and illnesses. The final regulations, which require employers to electronically submit information about workplace injuries and illnesses, also bar employers from retaliating against workers for reporting such incidents.

The electronic record-keeping provisions of the final rule are not taking effect for qualifying establishments until July 1, 2017. However, the anti-retaliation provisions impacting post-accident drug-testing policies were scheduled to take effect on Aug. 10, 2016 but are now deferred until Nov. 1, 2016. The anti-retaliation rule initially provided that beginning Aug. 10, employers would be required to:

  • Inform employees of their right to report workplace injuries and illness;
  • Inform them employers were not permitted to retaliate;
  • Establish and widely communicate a reasonable procedure for employee reporting; and
  • Provide employees and their representatives with access to non-redacted illness and injury records.

OSHA’s official reason for pushing back the implementation of the anti-retaliation provisions to Nov. 1 is to provide more guidance to employers. Yet many suggest that the effective date is delayed because the provisions have been challenged in a Texas lawsuit brought by eight employer groups including the National Association of Manufacturers. The groups are asking for injunctive relief from the new rule generally, or at least as it would apply to employer safety incentive programs and routine mandatory post-incident drug testing. In addition, they are seeking a declaratory judgment that the new rule exceeds OSHA’s statutory jurisdiction and authority.

We will continue to keep you posted on any OSHA updates to the final rule. In the meantime, if you have questions about record-keeping, reporting or any of the OSHA final rule provisions, please contact our Employment & Labor Group

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