OSHA Anti-Retaliation Rules Survive Challenge

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

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HR Legalist

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.

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.”

Article source: http://bit.ly/2gKKuoC

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