OSHA delays enforcement of anti-retaliation provisions in reporting rule update

August 2nd, 2016 by Dakota Software Staff Industry News

The Occupational Safety and Health Administration recently decided to delay the enforcement of controversial anti-retaliation provisions contained in the federal regulator's injury and illness tracking rule update. The bulk of the new rule's requirements, focused around electronic submission of workplace illness and injury data, will still become the new standard on Jan. 1, 2017. However, the effective date for the anti-retaliation measures was pushed back from Aug. 10, 2016 to November 1 , according to the regulatory agency. While not an especially long delay, the action indicates OSHA believes more needs to be done related to the anti-retaliation components of the rule.

Providing more time for education and awareness
The new requirements include a number of additional responsibilities for employers. Businesses must clearly tell employees they have the right to report any and all workplace injuries and illnesses without being concerned about retaliatory actions. They must also implement workflows and procedures that neither discourage reporting nor have unreasonable requirements for doing so. Additionally, the new methods for reporting must incorporate existing OSHA rules that prohibit organizations from taking action against staff who report illnesses and injuries.

As legal services firm Gardere pointed out in a blog post on Lexology, the new rules could have an effect on certain initiatives currently used to promote workplace safety and reward employees for accident- and incident-free periods of operation. Safety incentive programs may run afoul of the new rule if, for example, they discourage staff from reporting an on-the-job injury because such an action would eliminate the potential for a reward given to some or all other employees.

Similarly, the language of OSHA's new rule could have a significant impact on the way businesses create and enforce drug and alcohol testing policies. The Society for Human Resource Management said OSHA is functionally against blanket post-incident drug testing and instead advocates measures that take the context of the incident and the ability or inability of a drug test to accurately identify the suspected substances into account. OSHA has a similar position toward safety incentive programs, in that it doesn't want to ban them entirely but won't allow situations where the programs discourage reporting - whether on purpose or not.

With these new rules soon coming into play, safety compliance has to be at the forefront for businesses affected by them. Companies should take advantage of OSHA's decision to delay implementation by reviewing current programs and taking advantage of the educational materials and guidance OSHA plans to generate in the coming months.