Yesterday, a federal judge denied a preliminary injunction filed by several businesses and business groups regarding the anti-retaliation portion of OSHA’s final rule regarding injury and illness reporting. As previously discussed in this blog, the final rule generally requires employers to submit certain injury and illness information electronically. The final rule also enhances anti-retaliation protections to encourage reporting injuries and illnesses in the workplace by (1) forbidding employers from discriminating against an employee for reporting a work-related injury or illness; (2) requiring employers to implement reasonable reporting methods that do not deter employees from reporting; and (3) requiring employers to inform employees of their right to report free from retaliation.
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.
OSHA has previously stated that it would stay enforcement of the anti-retaliation provision until tomorrow, December 1, 2016, due to the pending challenge. OSHA has not made any public statement about making an additional extension. Companies should therefore prepare to comply with the provisions of the anti-retaliation rule beginning tomorrow. As noted previously, the recording and reporting requirements of the OSHA rule will not begin to take effect until March 2, 2017.
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