The Occupation Safety and Health Administration (OSHA) again delayed enforcement of the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, until December 1, 2016. OSHA delayed enforcement at the request of Northern District of Texas Judge Sam Lindsay. Judge Lindsay is considering the complaint and motion for preliminary injunction filed by several industry groups challenging the anti-retaliation provisions to the extent that OSHA seeks to limit routine post-accident drug testing and incident-based safety incentive and recognition plans.
This is the second time OSHA has delayed enforcement of the anti-retaliation provisions. The provisions were originally scheduled to go into effect on August 10, 2016. Approximately one month before the effective date, OSHA announced that it was delaying enforcement until November 1, 2016, to allow time to develop compliance guidance clarifying the impact of the provisions on post-accident drug testing and safety incentive plans. As previously reported, OSHA identifies post-accident drug testing and safety incentive plans as programs that may result in impermissible retaliation against employees who report injuries.
The industry groups challenging the regulation filed an emergency motion for a preliminary injunction to stay enforcement of OSHA’s anti-retaliation provisions pending a ruling on the merits of the case. In its opposition, OSHA claims that the plaintiffs’ challenge to statements in the preamble regarding drug testing and safety incentive programs “are not reviewable at all, because they do not purport to bind the agency or regulated parties, but rather speak in hypothetical and conditional terms.” OSHA also asserts that a nationwide injunction applicable to the plaintiffs as well as nonparties is not appropriate. On October 14, 2016, the judge issued an order asking OSHA to stay enforcement until December 1, 2016 to give sufficient time for additional briefing on the scope of the preliminary injunction. The judge also needs additional time to rule on the injunctive relief.
On October 18, 2016, OSHA agreed to stay enforcement of the anti-retaliation provisions until December 1, 2016. In a letter to Regional Administrators, Deputy Assistant Secretary Dorothy Dougherty characterized the final rule’s anti-retaliation provisions as “clarify[ing] the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses” be “reasonable” and “not deter or discourage reasonable employees from reporting,” and “incorporates into Part 1904 the existing statutory prohibition” on retaliation. Nevertheless, OSHA agreed to delay enforcement of the provisions.