HR Legalist

In Limbo: Fate of New OSHA Anti-Retaliation Rules Still Uncertain

As reported by HR Legalist, the Occupational Safety and Health Administration (OSHA) announced a set of new recordkeeping and reporting rules in May 2016.  A central provision of the new rules, which requires employers of a certain size, or in certain industries deemed high-risk, to submit injury and illness data to OSHA for publication on the agency’s website, will take effect next year, with most impacted employers being required to submit 2016 forms by July 1, 2017.

Portions of the new rule that would strengthen OSHA’s ability to encourage accident reporting and prohibit retaliation were originally scheduled to go into effect on August 10, 2016. However, on July 12, 2016, several industry groups and companies filed an emergency motion in Texas Federal Court to stay these parts of the new rule.  The day after the motion was filed, OSHA announced that it would delay enforcement of the new provisions until November 1, 2016.

Since the Texas court has yet to actually rule on the pending motion, employers should become familiar with the new rules and prepare accordingly. There are three main features of the rules that will go into effect on November 1^st:

1. New Notice Provisions

The first and least controversial new rule requires employers to inform employees of their right to report workplace injuries and illnesses without retaliation. Conspicuously posting OSHA’s existing workplace rights poster will satisfy this requirement.

2. Expanded Anti-Retaliation Provision

Under OSHA’s governing statute, the Occupational Safety and Health Act (the “OSH Act”), employees who believe they have been retaliated against for reporting work-related injuries or illnesses may file a complaint with OSHA within 30 days of the alleged retaliatory act. OSHA can then investigate the employee’s complaint, and may file an action in federal court on behalf of the employee seeking the employee’s reinstatement or re-hire with back pay.

The new rule goes beyond the original language of the OSH Act and would allow OSHA to issue citations to employers for retaliating against employees – even if no employee has filed a complaint.

3. Increased Scrutiny of Incident-Based Safety Incentive Programs and Drug Testing

The new rules also require employers to establish a “reasonable procedure” for employees to report workplace injuries and illnesses. The rule states that a procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  OSHA is targeting two common employer safety practices: (1) incident-based safety incentive programs which reward employees who avoid workplace accidents, and (2) blanket post-accident drug testing programs.  According to OSHA, incentive programs that withhold benefits from employees who report accidents will violate the new rule – even if they are introduced with the best of intentions.  As for drug testing, OSHA will now take the position that post-incident testing should be limited to “situations in which employee drug use is likely to have contributed to the accident.”  The new rule provides the following examples of when post-incident drug testing would not be reasonable: when an employee reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.

This new rule pits two competing workplace safety concerns against each other. On the one hand, employers and industry groups clearly have an interest in incentive programs that will help keep the workplace and the jobsite safer, and drug testing programs that can help identify the root cause of safety incidents.  On the other hand, OSHA wants to make sure that employees come forward to report injuries and illnesses so that it can get an accurate picture of the current state of workplace safety.

What’s Next?

It’s too soon to tell whether the industry plaintiffs in the Texas lawsuit will successfully stop the new rules from coming into effect in November. In their initial brief, plaintiffs point out that the new anti-retaliation rules were not disclosed in OSHA’s original notice of rulemaking, and that Congress previously rejected a proposal granting OSHA greater power to prohibit retaliation.  OSHA will likely argue that courts usually defer to an agency’s interpretation of a statute.  However, as we have seen with recent court rulings regarding overtime regulations and the persuader rule, agency rules can still be struck down if there are procedural defects, or if the agency exceeds its authority.

The court will probably not hear arguments from industry and government attorneys until at least mid-September, meaning that a decision might not arrive until later in the fall. In the meantime, employers affected by this new rule should consult with employment counsel to make sure they are prepared.