Executive Summary: In May 2016, the Occupational Safety and Health Administration (OSHA) promulgated the Record Keeping Modernization Rule (the Rule) which required certain employers to submit injury and illness data electronically and specifically prohibited employers from retaliating against employees for reporting an injury or illness. We discussed the Rule in our June 20 and November 30, 2016 Alerts.

Several business groups filed lawsuits challenging the Rule, including arguing that it would unlawfully prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.

On June 28, 2017, OSHA published a notice in the Federal Register proposing a five-month delay to the July 1 deadline to submit information required under the Rule and indicated that other portions of the Rule would be subject to changes.

Subsequently, two federal district courts have granted unopposed motions to halt litigation while OSHA considers whether to undo all or part of the Rule. See Order, TEXO ABC/AGC, Inc. v. Acosta, No. 3:16-cv-1998 (N.D. Tex. June 30, 2017), ECF No. 71; Order, National Association of Home Builders of the U.S. v. Acosta, No. 5:17-cv-00009 (W.D. Okla. July 10, 2017), ECF No. 72.

Employers’ Bottom Line: The Rule has caused employers to reconsider longstanding safety incentive programs and/or routine mandatory post-accident drug testing programs. In the lawsuits challenging the Rule, the business groups had argued that many employers rely on such programs to promote workplace safety and that these restrictions would significantly limit their ability to reduce workplace injuries. The prospects are good that the Rule will be substantially modified by OSHA.