On May 12, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA. OSHA also indicated its intention to publish this employer information on a public website. Fearing that the publicity of workplace injury and illnesses would motivate employers to discourage their employees from reporting injuries and illnesses, OSHA included three major anti-retaliation provisions in the final rule.
The anti-retaliation provisions were initially set to become effective on Aug. 10, 2016. After considerable push-back from employers across multiple industries, OSHA delayed enforcement of the anti-retaliation provisions to Nov. 1, 2016. However, on Oct. 12, 2016, OSHA announced it would delay enforcement of the anti-retaliation provisions a second time. The second delay was granted to allow a federal judge sufficient time to review a lawsuit that was filed to challenge the new anti-retaliation provisions. The new enforcement deadline is now set for Dec. 1, 2016.
Though the new anti-retaliation provisions are being challenged in court, they remain scheduled to come into force by Dec. 1, 2016. For this reason, employers should review their safety incentive programs and drug-testing policies to comply with the new rule.
The new anti-retaliation provisions will allow OSHA to take a more proactive enforcement role, meaning that OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA feels that the employer is discouraging appropriate reporting. This is possible because the new rule integrates the new anti-retaliation provisions into OSHA’s regulations, allowing OSHA to enforce them through its citation process.
In light of OSHA’s recent announcement of increased penalties and of a new, more comprehensive inspection process, OSHA’s ability to cite employers for anti-retaliation violations becomes a greater potential threat to non-compliant employers.
We will continue to monitor this and other OSHA developments and update you with relevant information. In the meantime, please contact Conservation United for more information on the anti-retaliation provisions, the electronic reporting final rule or other OSHA compliance questions.