RISK INSIGHT: OSHA Delays Enforcement of Anti-Retaliation Provisions

The Occupational Safety and Health Administration (OSHA) announced on Wednesday, July 13, 2016, that the anti-retaliation provisions included in 29 CFR Part 1904 of the revised recordkeeping regulations, will not be enforced until November 1, 2016. The provisions were originally scheduled to go into effect on August 10, 2016. The move comes five days after a business coalition filed a lawsuit challenging the anti-retaliatory provisions of the rule.

The business coalition, which included the National Association of Manufacturers, Great American Insurance Company, and Associated Builders and Contractors (ABC), filed suit in the U.S. District Court, Northern District of Texas. Based on ABC’s news release, the coalition stated, “It’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

Another industry concern regarding the new rule is that all injury data will be public (see related M3 blog article on this topic). Organizations employing between 20 and 249 workers must send data from OSHA Form 300A to the agency electronically, and all employers with 250 or more employees must also report data from Forms 300 and 301. Industry groups maintain that making the injury information public will provide only one aspect of a company’s safety history and culture and will expose private information.

Know how these changes impact you as an employer. . .

The anti-retaliation provision will bring about changes that will impact how employers manage drug testing and incentive programs. Now is the appropriate time to review and/or potentially revise your safety procedures and policies. We recommend partnering with legal counsel, industry associations, and your M3 experts for assistance in reducing the potential impact these regulatory changes have on your organization.

M3 will continue to keep you updated on changes in OSHA’s recordkeeping regulations as new information unfolds.

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