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December 02, 2016
Employer alert: OSHA free to enforce anti-retaliation rule

An unsuccessful attempt to prohibit OSHA from enforcing anti-retaliation provisions contained in the agency’s recordkeeping regulations means the rules are now on the books and enforceable. Get more on this significant legal decision here.

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A federal court judge determined that the rules, whose enforcement had been delayed until December 1 so OSHA could clarify expectations, could take effect. The challenged provisions require that employers inform their employees about their right to report job injuries and illnesses without retaliation. The rule also includes some controversial stipulations regarding mandatory post-accident drug testing and safety incentive programs.

According to attorney Howard Mavity, a partner with the employment law firm Fisher Phillips and co-chair of its Workplace Safety & Catastrophe Management Practice Group, the recent decision does not determine if the rule will be upheld long term, or whether the Trump administration will follow the interpretations.

The controversy came to light in May when OSHA published its final rule to improve tracking of workplace injuries and illnesses. Provisions starting next year will require many employers to electronically submit information about work-related injuries and illnesses to OSHA. The agency plans to post the data, stripped of personally identifying information, on a publicly available website.

In response, a variety of business groups sued the government in an attempt to stop the rule. Earlier this week, Texas federal judge Sam Al Lindsay rejected the challenge, claiming that the plaintiffs did not show that enforcement of the rule would cause “irreparable harm.”

As for how to proceed today, Mavity and other experts say there’s no clear-cut answer. The question is whether to change policies and procedures in light of the December 1 date, or wait to see what happens in the new year. He says the straightforward approach is to follow guidance offered by OSHA in an October memorandum.

That would mean no longer automatically drug testing employees after all workplace incidents, but only when there is a “reasonable suspicion that unlawful drug use might have been a factor in the accident.” As well, the OSHA recommendations suggest eliminating safety incentive programs where rewards are tied to injury and illness outcomes.

Mavity advises employers to train supervisors to discipline employees for unsafe behavior before an injury occurs, rather than waiting until after an incident is reported. Doing otherwise could cause an appearance of retaliation against employees for getting injured or for reporting injuries, which is exactly what OSHA’s new antiretaliation provisions are intended to prevent.

Stay tuned for more on this case. Even though plaintiffs failed to have the rule blocked, the lawsuit will continue to make its way through the courts.

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