OSHA Delays Effective Date for Anti-Retaliation Provisions in New Tracking Rule

Source: OSHA July 15 QuickTakes: Corrected

OSHA is delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to conduct additional outreach and provide educational materials and guidance for employers. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016. Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and employers are prohibited from retaliating against workers for reporting injuries and illnesses.

AGC of America’s Take on the Delay

On July 13, the Occupational Safety & Health Administration (OSHA) announced that the agency will delay enforcement of an anti-retaliation provision in its newly revised record keeping rules. This provision could deter the use of practices such as mandatory post-incident drug testing and safety incentive programs based on injury and illness rates. While the extension does provide employers with additional time to examine their policies, it does not eliminate the broader concerns regarding the position the agency has taken on such programs.  Specifically, OSHA mentions in the preamble to the new rule that employers who require mandatory post-incident drug testing and implement safety incentive programs based on injury and illness rates could be in violation of the new regulation.  AGC views the position taken by OSHA as both inappropriate and unlawful and is currently working with outside counsel to explore options for litigation.

The original effective date for enforcement was set for August 10, 2016, but has been extended to November 1, 2016. The effective date for electronically submitting injury and illness data to OSHA will remain July 1, 2017.