Yesterday, OSHA announced that it would delay the effective date of one portion of the final rule, “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule. Specifically, OSHA has delayed enforcement of the anti-retaliation provision, 1904.35(b)(1)(iv), from August 10, 2016 until November 1, 2016. Section 1904.35(b)(1)(iv) states, “[employers] must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” According to the agency’s news release the delayed effective date will allow OSHA “to conduct additional outreach and provide educational materials and guidance for employers.”
The announcement was made after a coalition of industry groups and employers filed suit in federal court last week seeking to block OSHA from enforcing the new requirements. TEXO ABC/AGC v. Perez, No. 16-1998 (N.D. Tex. July 8, 2016). Among other things, the lawsuit seeks a declaratory judgment that the new rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.
As we discussed in a previous blog post, “What OSHA’s Electronic Recordkeeping Rule Means for Workplace Post-Accident Drug and Alcohol Testing,” OSHA stated in the commentary to its new rule that: “the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Since the commentary was published in May, there has been much debate about whether any form of “automatic” (i.e., without reasonable suspicion) workplace post-accident or post-injury drug and alcohol testing would pass muster with OSHA. We will continue to follow this issue and report on all new developments.