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 Thursday, 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. Also, some forms of post-accident drug testing and accident-free programs will be deemed to be unlawfully retaliatory. 

On July 8, ABC, 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 [email protected].

Note:  the final rule’s reporting requirements are effective Jan. 1, 2017.

To learn more about the final rule, see:

• OSHA Fact Sheet
• Frequently Asked Questions
• OSHA’s Workplace Poster
• DOL Website

ABC was an active participant throughout the electronic injury reporting and anti-retaliation rulemaking process. ABC has:

• participated in a January 2014 public meeting held by OSHA to explain its concerns with the proposed rule as a member of the Coalition for Workplace Safety (CWS);
• submitted comments in March 2014 along with more than 900 member companies asking OSHA to withdraw the rule as proposed; and
• submitted comments in October 2014 along with other members of the CWS.