As we previously reported, OSHA issued a final rule on May 11, 2016, requiring most employers to submit injury and illness data electronically. OSHA will publish this data on its public website with the intention to “nudge” employers to improve workplace safety. This new OSHA rule also contains anti-retaliation provisions which would effectively prohibit employers from utilizing certain safety incentive programs and automatic post-accident drug testing policies.
In July of 2016, several industry groups challenged the regulations in a lawsuit and also requested a preliminary injunction to halt enforcement of the anti-retaliation provisions pending a ruling on the merits of the case. On November 28, 2016, District Judge Sam Lindsay of the United States District Court for the Northern District of Texas, denied that request. However, Judge Lindsay did not address the merits of the case, and stated: “The fact that the court has denied injunctive relief requested by the Plaintiffs is not a comment or indication as to whether Defendants will ultimately prevail on the merits. This determination is left for another day.” In other words, the employers and industry groups which filed the lawsuit may ultimately succeed in convincing the judge that OSHA does not have the authority to create a new remedy for employees who believe they have been retaliated against.
Therefore, as of December 1, 2016, the anti-retaliation provisions of the rule are in effect. Employers should take immediate steps to ensure safety incentive programs, drug testing policies, and injury reporting procedures are in compliance with the new rule.