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OSHA Update: Reporting Rule Enforcement Delay

Oct 26, 2016 2:14:08 PM

OSHA Update - Reporting Rule - FB.jpgIn May 2016, a final rule was issued to improve the tracking or workplace injuries and illnesses.

Aside from the new reporting requirements, the rule also contains anti-retaliation provisions. Though originally scheduled to become effective on August 10, 2016, OSHA has delayed the enforcement twice, with a new effective date of December 1, 2016.

What Are The Anti-Retaliation Provisions?

The purpose of the provisions is to prevent employers from discouraging their workers to report workplace injuries or illnesses. Workers should feel free to report without the fear of retaliation.

The three provisions are as follows:

  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later.
  • An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
  • An employer may not retaliate against employees for reporting work-related injuries or illnesses.

Why The Delay?

The introduction of the provisions has resulted in a lot of conversation, particularly on one area – post-incident drug testing.

In the complete text of the final rule, OSHA states: Drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

OSHA goes on to say: Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

There have been many questions regarding this aspect of the rule and the impact on post-incident drug testing procedures. But uncertainty remains – including what OSHA means by “reasonable possibility” and “a contributing factor.”

This uncertainty led to the first enforcement delay. Then a lawsuit was filed related to the provisions, causing this additional delay.

OSHA released the following memo to explain the delays:

“OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.). OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.”

Violations of OSHA standards can be costly - so it is important to take time to ensure your policies and procedures are compliant. Keep a close eye on OSHA news in the upcoming month as we expect more updates and clarification on this particular issue.

Gary Clark

Written by Gary Clark

Gary is the Loss Prevention Manager at Gibson, specializing in risk management techniques and loss prevention services for business clients. His responsibilities include oversight of the Loss Prevention team, providing them with guidance and support for achieving the strategic goals of the agency and clients. In addition, Gary is responsible for leading ongoing staff training, recruiting efforts, and monitoring service quality and timeliness. Read Gary's Full Bio