OSHA: Anti-Retaliation Rule Enforcement Delayed for Second Time

OSHA Recording and Reporting Occupational Injuries and Illness

The OSHA (Occupational Safety and Health Administration) has decided to delay the enforcement of the controversial anti-retaliation provisions of its own latest amendments to the Recording and Reporting Occupational Injuries and Illness rules until December 1, 2016.

The regulation does not allow employers from discouraging employees from reporting an injury as well as illness. Specifically, 29 C.F.R. 1904.35(b)(1)(iv), as amended, states, “You the employer must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” Post-accident tracking drug testing is not specifically pointed out in the amendments however is mentioned in the Federal Register notice, which states in part :

Drug testing regulations need to minimize post-incident testing to scenarios wherein worker drug use will probably have played a part in the incident, as well as for which the drug test are able to precisely recognize impairment caused by drug use. For instance, it can certainly not be sensible to drug-test a worker who reports a bee sting, a recurring strain injury, or perhaps an injury due to an absence of machine guarding or maybe a machine and also tool break down. Such a policy is probably going simply to discourage reporting without strengthening the employer’s knowledge of why the injury took place, or in any further way supporting workplace safety. Employers do not need to expressly suspect drug use before evaluating, however there should be a practical possibility that drug use by the reporting worker was a legitimate reason to the claimed injury or illness to ensure that an employer to entail drug testing.

The anti-retaliation provisions of the rule started to be effective August 10, 2016, yet OSHA at the start postponed their enforcement until November 1, 2016. OSHA’s latest extension was in line with a request by the U.S. District Court for the Northern District of Texas to let additional time to consider a motion waiting to be approved before the court in a case challenging the recent provisions, TEXO ABC/AGC Inc. v. Perez, No. 3 :16-cv-01998-D (N.D. Tex.).

On October 19, 2016, OSHA released a memorandum meant to give extra guidance on its most recent rule.

As outlined above, OSHA’s post-accident drug testing discussions is not included in the rule itself, however in the Federal Register observe. Although such commentary is lacking the force as well as impact of law, OSHA’s October 19th memorandum unwraps its perspective that the issue regulation, as amended, “prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.” Employers must evaluate their post-accident drug testing guidelines to assess compliance with OSHA’s policy as well as understanding of the regulation ; for many employers, this might involve thing to consider of leaving a current cover post-accident drug testing policy.

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