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OSHA’s Anti-Retaliation Rules Delayed

Monday, November 7, 2016
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Earlier this year, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA.

Fearing that the publicity of workplace injury and illnesses would motivate employers to discourage their employees from reporting injuries and illnesses, OSHA included three major anti-retaliation provisions in the final rule. OSHA’s new anti-retaliation provisions impose two main requirements on employers:

  • Employers must inform employees that they have a right to report work-related injuries and illnesses free from retaliation; and
  • Employers must adopt reasonable procedures that employees can use to report workplace injuries and illnesses.

Recently, a federal court has instructed OSHA to delay implementation of the most controversial provisions of the new electronic recordkeeping regulation. Initially, this rule was set to be implemented on Aug. 10, 2016, then Nov. 1, 2016 and now it is set for Dec. 1, 2016.

The link below is what was published on the OSHA website:

https://www.osha.gov/recordkeeping/finalrule/TrackingEnforcementMemo_101816.html

Also, the agency published “helpful” information clarifying its position on these controversial provisions

https://www.osha.gov/recordkeeping/modernization_guidance.html

Last, the link to the memorandum below further clarifies the agency’s position… including something relatively new. The agency contends a blood or breath alcohol test is the only form of testing employers can rely on to determine if an employee was intoxicated at the time of injury. Therefore, a test revealing the presence of cocaine, opioids, etc. should not be performed post-injury as a method to determine if the employee was intoxicated at the time of injury. It appears the agency is suggesting such testing following any injury is retaliatory in nature. I’ve seen at least two articles from attorney’s confirming my fears.

https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html

The court in Texas may have something different to say, but for now, Dec. 1, 2016 is the deadline where employers will be prohibited from testing any employee for anything other than alcohol following an injury.

Employers should keep the following in mind:
  • Employers must inform their employees of their reporting rights and adopt reasonable reporting processes.  
  • Blanket, mandatory drug-testing policies for reporting workplace injuries violate anti-retaliation protections.
  • Incentive programs violate anti-retaliation protections if they discourage employees from reporting workplace incidents.
Key Dates:
  • December 1, 2016 – The anti-retaliation provisions of the electronic reporting rule become effective.
  • July 1, 2017 – The first electronic reports are due to OSHA by this date. OSHA’s Anti-retaliation Rules Delayed Until Dec. 1

 

 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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