HR Management & Compliance

Judge clears way for antiretaliation portion of new OSHA rule

The antiretaliation provisions of the Occupational Safety and Health Administration’s (OSHA) new electronic record-keeping rule are set to be implemented on December 1 after a Texas federal judge denied a request for a preliminary injunction on November 28.

The eventual fate of the rule isn’t known since Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas said his decision to deny the preliminary injunction “is not a comment or indication” on who will ultimately prevail in a lawsuit challenging the rule. “This determination is left for another day,” he wrote in his opinion.

The new final rule, dubbed by OSHA as a rule to “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register on May 12. It technically becomes effective on January 1, 2017, but the antiretaliation provisions will take effect on December 1. Those provisions:

  • Require employers to inform employees of their right to report work-related injuries and illnesses;
  • Clarify the existing requirement that employers’ procedures for reporting injuries and illnesses be reasonable and not discourage reporting; and
  • Reiterate that employers are prohibited from retaliating against employees for reporting injuries and illnesses.

Originally, the provisions were to be implemented on August 10, but that date disappeared with the filing of the lawsuit in Texas federal court. OSHA first agreed to delay enforcement until November 1 and then extended the delay until December 1. The groups that filed the lawsuit sought a preliminary injunction to stop the December 1 date, but Lindsay denied the request, saying the evidence didn’t support a claim that “a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.”

Since enforcement of the antiretaliation provisions will begin December 1, employers need to make sure their policies on injury and illness reporting are in compliance with the new rule.

On October 19, OSHA issued guidance intended to explain employers’ obligations, including the requirement that employers’ policies and procedures not discourage employees from reporting illnesses and injuries. Also, disciplinary policies, postaccident drug-testing policies, and safety incentive programs must not deter reporting or be used to retaliate against workers for reporting injuries and illnesses.