OSHA recently announced that it is delaying the effective date of the controversial anti-retaliation portion of its new recordkeeping rule in order to conduct additional outreach and provide educational materials and guidance for employers. The agency’s announcement comes on the heels of a legal challenge seeking injunctive relief from the anti-retaliation provision in the rule.
As we discussed in a previous update, OSHA’s new recordkeeping rule includes a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. In the preamble to the final rule, OSHA indicated that post-accident drug testing and employer safety incentive programs may result in impermissible retaliation against employees who report injuries or illnesses.
On July 8, 2016, the National Association of Manufacturers, Associated Builders and Contractors, Inc., as well as several national, state, and local business groups, jointly filed a lawsuit in the U.S. District Court for the Northern District of Texas, TEXO ABC/AGC, Inc. v. Thomas, No. 3:16-cv-1998 (N.D. Tex. July 8, 2016), challenging OSHA’s prohibition of mandatory post-accident drug testing and employer safety incentive programs. Plaintiffs allege that OSHA exceeded its statutory authority, failed to follow required rulemaking procedures, failed to conduct adequate regulatory analysis, and violated the Administrative Procedure Act by adopting an arbitrary and capricious rule. Further, plaintiffs asserted that OSHA’s restrictions on post-accident drug and alcohol testing improperly limit an employer’s ability to investigate an incident and interfere with state workers’ compensation laws requiring or encouraging employers to conduct post-accident drug testing.
While it remains to be seen whether the district court will grant the request for injunctive relief, OSHA has postponed the effective date of the onerous anti-retaliation provision in the final rule from August 10, 2016 to November 1, 2016. If the court provides injunctive relief, however, the lawsuit will likely delay implementation of this provision before the new deadline.