OSHA Anti-Retaliation Rule Comes into Effect After Court Declines to Block It

OSHA Anti-Retaliation Rule Comes into Effect After Court Declines to Block It

As part of a new rule issued in May by the US Department of Labor’s Occupational Safety and Health Administration, employers are now forbidden from discriminating against employees for reporting a work-related injury or illness, and are required to inform employees of their right to report without fear of retaliation. Enforcement of this rule was supposed to begin in August, but was delayed once to give employers time to better understand the rule and how to comply, and again after a number of business groups sued to have the rule blocked.

As Steven Hurd describes at the National Law Review, the federal judge hearing the case declined on Tuesday to issue a preliminary injunction, opening the way for the rule to be enforced as scheduled starting today, December 1:

The plaintiffs sought a preliminary injunction of part of the anti-retaliation provision of the OSHA rule, claiming that the final rule unlawfully limited certain employer safety incentive programs and drug testing programs.

The court denied the motion, concluding that the plaintiffs had failed to show that they would suffer irreparable harm if the anti-retaliation rule took effect before the court had ruled on the merits. The court concluded by noting: “That the court has denied injunctive relief requested by Plaintiffs is not a comment or indication as to whether Defendants will ultimately prevail on the merits. This determination is left for another day.” Thus, the court will consider at a later date the plaintiffs’ substantive challenge to the anti-retaliation rule.

SHRM’s Lisa Nagele-Piazza notes that, like many other rules issued by the Labor Department over the past two years, this one may or may not survive the upcoming presidential transition:

[John Martin, an attorney with Ogletree Deakins in Washington, D.C.,] noted that the incoming administration might not attempt to aggressively enforce these provisions. President-elect Donald Trump criticized overreaching regulations during his campaign, so it’s possible he could decide not to defend the lawsuit or not to enforce the rules, he said. “But it’s difficult to take out a crystal ball and read what the Trump administration is going to do.”

The other aspect of the new rule, which will require employers to report certain injury and illness information to OSHA for inclusion in a searchable electronic database, does not come into effect until January 1, 2017.