In a November 28, 2016 decision, a federal district court in Texas denied a preliminary injunction to block the Occupational Safety and Health Administration’s (OSHA) new rule, Improve Tracking of Workplace Injuries and Illnesses. This means that the antiretaliation provisions will take effect on December 1, 2016 and the electronic filing provision takes effect in 2017.
In filing suit, plaintiffs sought an injunction challenging the following three additions to 29 C.F.R. § 1904.35(b)(1), with an emphasis on the antiretaliation provision:
- The requirement that employer procedures for employee reporting of workplace injury reporting be reasonable;
- The requirement that employers inform employees of their right to report work-related injuries free from retaliation; and
- The requirement that employers not retaliate.
Plaintiffs also opposed the portion of the new rule in regard to post-incident drug testing. However, the court agreed with the defendants and found not only could the plaintiffs not establish irreparable harm, a required standard for a preliminary injunction, but that the new rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work-related injuries and employer procedures that would discourage a reasonable employee from reporting an injury. However, the court did not decide upon the merits of the case; rather, the court denied injunctive relief requested by the plaintiffs not as a comment or indication as to whether defendants will ultimately prevail on the merits. That determination is left for another day.
What This Means for Employers
The impact is that employers are required to comply with OSHA’s new rule beginning December 1, 2016. This also means OSHA may conduct inspections to determine whether an employer’s drug-testing program or safety incentive retaliates against employees for reporting an illness or injury. Employers are prohibited from taking any adverse action against employees for reporting work-related illnesses or injuries.
For further guidance and information, read our previous blog article about the first extension to the rule’s implementation, our Ask the Experts: Post-Accident Drug Test Policy question and answer, and our initial blog article detailing OSHA’s release of the rule.