OSHA Anti-Retaliation Rules Survive Legal Challenge

Author: Michael Cardman, XpertHR Legal Editor

December 2, 2016

New anti-retaliation requirements from the Occupational Safety and Health Administration (OSHA) will remain in effect after a court denied a group of businesses' effort to temporarily stop them.

The US District Court for the Northern District of Texas on November 28 denied the group's request to temporarily halt anti-retaliation provisions of a new electronic reporting rule.

These provisions, which took effect December 1, require that employers:

  • Inform employees of their right to report work-related injuries and illnesses free from employer retaliation;
  • Be able to provide proof that the employees received this information; and
  • Establish "reasonable procedures" for employees to report injuries and illnesses.

The plaintiffs - a group comprising trade associations like the National Association of Manufacturers, a workers' compensation insurance provider, and several businesses that had purchased insurance from the provider - had argued that OSHA went beyond its regulatory authority in issuing these new provisions, and that they would prohibit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.

They asked the court to temporarily suspend the anti-retaliation provisions pending the outcome of their lawsuit. However, the court found that the businesses failed to demonstrate that there was a good chance they would ultimately win or that they would be irreparably harmed - both of which are prerequisites for a preliminary injunction.

But, as the court noted, its refusal to temporarily suspend the anti-retaliation provisions "is not a comment or indication as to whether Defendants will ultimately prevail on the merits." That decision, it said, "is left for another day."