Anti-retaliation provisions of OSHA’s reporting rule take effect

The anti-retaliation provisions of the Occupational Safety and Health Administration’s (OSHA) Electronic Injury Reporting and Anti-Retaliation final rule (also known as Improve Tracking of Workplace Injuries and Illnesses) go into effect Dec. 1. The rule, which was finalized on May 12, 2016, will make the submission of the injury and illness forms mandatory and exclusively electronic for most employers. For the first time, OSHA plans to make this information publicly available on the Internet through a new searchable database and use the data for enforcement purposes.

On July 8, the Associated Builders and Contractors (ABC), Washington; Dallas-based construction association TEXO; and a coalition of stakeholders filed a lawsuit challenging the anti-retaliation provisions of the final rule. The legal challenge was filed in the U.S. District Court for the Northern District of Texas. On July 12, ABC filed an emergency motion for preliminary injunction seeking to delay the anti-retaliation provisions from implementation. On Oct. 18, OSHA announced that it agreed to delay enforcement on the anti-retaliation provisions until Dec. 1.

On Nov. 28, the U.S. District Court denied the motion for preliminary injunction, primarily on the basis that plaintiffs had not shown sufficiently irreparable harm from the new rule, but without reaching the merits of the legality of the rule. Thus, the rule’s anti-retaliation provisions will go into effect on Dec. 1. The litigation remains pending and may not be definitively resolved until after the Trump administration takes office in 2017.

ABC’s general counsel Littler Mendelson P.C. has prepared an analysis to help ABC members learn more about the court’s decision and employer options.  Also, members may request further information about the rule’s anti-retaliations provisions at regulatory@abc.org. The final rule’s reporting requirements are effective Jan. 1, 2017, and will be phased in over two years.