The Occupational Safety and Health Administration’s (OSHA) vague, broad and controversial new anti-retaliation regulations prohibiting employers from retaliating or taking adverse action against employees who report injuries or illness will now be enforced by OSHA starting today, December 1, 2016, despite industry legal attempts to halt implementation of those provisions. Employers should ensure that their safety rules and programs, particularly injury/illness reporting policies, and drug testing and safety incentive programs, comply with the new rule. Further, employers should be prepared to respond to questions or inquiries regarding their programs and policies during the course of an OSHA inspection.

Even though OSHA is now enforcing the new anti-retaliation provisions, hope for stopping OSHA is not completely lost. On July 8, 2016, Texo ABC/AGC, Inc. and other entities (Plaintiffs) filed suit against the United States Department of Labor and OSHA alleging that the new anti-relation regulations stated in 29 CFR 1904.35(b)(1)(i), (iii) and (iv)  are unlawful and, among other things, requesting that the court enjoin OSHA from enforcing the new regulations. On November 28, 2016, the district judge hearing the case denied Plaintiffs’ request for a preliminary injunction to stop implementation of the anti-retaliation regulations. However, the case will continue, and the court specifically stated that its denial of Plaintiffs’ request for a preliminary injunction is not a determination on the merits of Plaintiffs' claim or a statement regarding whether Plaintiffs’ request for a permanent injunction halting implementation of the new rule will be granted. Bryan Cave will continue to monitor the status of this litigation and will provide relevant updates if and as they occur.

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