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OSHA Delays Enforcement of its New Anti-Retaliation Provisions until November 1, 2016

July 15, 2016

There have been significant developments impacting the portions of OSHA’s new work-related injury and illness rule scheduled to become effective on August 10. As our July 7 alert explained, the new requirements include, among other provisions, both an obligation to establish and communicate a work-related injury/illness reporting procedure and a prohibition on procedures that deter or discourage employees from reporting workplace injuries and illnesses. As detailed in our prior alert, OSHA has interpreted these new rules as effectively prohibiting (i) “blanket” post-injury drug testing and (ii) safety incentive programs tied directly to the level of reported workplace injuries and illnesses.  

After our alert, on July 8, several business groups filed suit in federal court in Dallas challenging these new provisions and seeking an injunction to block the August 10 effective date.

On July 13, OSHA issued an Internal Memorandum and a press release indicating that the agency was delaying enforcement of the “anti-retaliation” provisions of the new rule scheduled to become effective August 10. While OSHA was less than clear in its press release as to whether enforcement of all of the new requirements of the rule scheduled to be effective on August 10 would not be enforced until November 1, it appears the agency intends this delay to extend to all of the employment-related provisions, including those impacting drug testing and safety incentives.

Of course, neither the filing of the lawsuit nor the OSHA delay in enforcement guarantees that employers will not need to ultimately comply with these new requirements. In order to be poised for compliance when and as required, employers may want to continue consideration of appropriate policies consistent with OSHA’s new rule, knowing the content and effective date of that rule may change.