OSHA Anti-Retaliation Rules Survive Challenge

Restrictions on safety incentives and drug testing will be enforced beginning Dec. 1

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP November 30, 2016
OSHA Anti-Retaliation Rules Survive Challenge

A federal judge decided not to stop a new Occupational Safety and Health Administration (OSHA) record-keeping rule's anti-retaliation provisions from taking effect on Dec. 1.

The controversial provisions will require employers to inform employees about their right to report workplace injuries and illnesses without facing retaliation. They will also restrict workplace safety incentives and drug-testing programs.

Several businesses and trade associations challenged OSHA's authority to create these provisions in a lawsuit filed with the U.S. District Court for the Northern District of Texas.

[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]

The business groups asked Judge Sam Lindsay to issue a preliminary injunction, which would temporarily stop the anti-retaliation provisions from taking effect until the court had time to make a final ruling on the merits of the case.

However, on Nov. 28 the court declined to block the rule because the challengers didn't show that they would suffer "irreparable harm" if the rule took effect. "Potential future injury based on unfounded fear and speculation … is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted," Lindsay said.

Barring a stay by the 5th U.S. Circuit Court of Appeals or a sudden and unlikely reconsideration by the district judge, the anti-retaliation provisions will go into effect Dec. 1, said John Martin, an attorney with Ogletree Deakins in Washington, D.C.

One thing to keep in mind about the lawsuit is that Lindsay said his decision isn't a comment about whether OSHA will ultimately prevail on the business groups' challenge, Martin noted. "At the end of the day, the provisions could still get this struck down, but that doesn't help employers by Dec. 1."

"The court simply held that the plaintiffs in the case could not meet the strict standards for an injunction at this early stage of the litigation," explained Patrick Miller, an attorney with Sherman & Howard in Denver.

It's important to note, however, that "the ruling does mean that OSHA may proceed with enforcement of the new rule while the case works its way through the system," he added.

Record-Keeping Rule

The anti-retaliation provisions are part of a broader record-keeping rule that will require certain businesses to electronically submit injury and illness data—some of which will be available to the public on the agency's website.

While the electronic reporting provisions are scheduled to take effect on Jan. 1, 2017, the anti-retaliation provisions had an initial enforcement date of Aug. 10, 2016.

Enforcement was delayed twice while the agency addressed employer confusion over the rules and while the Texas district court reviewed the business groups' legal challenge.

The agency issued guidance on Oct. 19 in an attempt to clear up confusion about the provisions, but some enforcement aspects are still vague.

Particularly with regard to the drug-testing provisions, it's difficult to understand what OSHA is trying to condemn with this rule, Martin said.

It seems like OSHA will be taking a look at drug-testing programs on a case-by-case basis, which doesn't help employers to clearly understand what steps they need to take to avoid citations, he added.

Martin noted that the incoming administration might not attempt to aggressively enforce these provisions. President-elect Donald Trump criticized overreaching regulations during his campaign, so it's possible he could decide not to defend the lawsuit or not to enforce the rules, he said. "But it's difficult to take out a crystal ball and read what the Trump administration is going to do."

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