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Is OSHA Backtracking on the Anti-Retaliation Provisions in the Recordkeeping Regulation?

The Occupational Safety and Health Administration (OSHA) added an anti-retaliation provision to the recordkeeping regulation finalized in May 2016, and it seems as if the workplace safety and health community has not stopped talking about it since. The impact of the provision on safety incentive programs and post-accident drug testing has been a particular focus of this conversation.

OSHA Releases “Recommended Practices for Anti-Retaliation Programs”

Last week OSHA announced the release of its “Recommended Practices for Anti-Retaliations Programs.” The publication is “intended to assist employers in creating workplaces that are free of retaliation … This document is advisory in nature and informational in content. It is not mandatory for employers, and does not interpret or create legal obligations.” Another caveat is that “This guidance is not intended to advise employees about their rights or protections under any whistleblower statute enforced by OSHA or any other government agency.”

Auto Industry Faced With New OSHA Retaliation Rule

On December 14, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule establishing procedures and time frames for handling automotive industry employees’ whistleblower retaliation complaints under MAP-21 (the Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. 30171). The final rule, which became effective immediately, is identical to the interim final rule that was published on March 16, 2016.

Anti-Retaliation Provision of OSHA’s Final Rule Is Now In Effect

As we previously reported, in May, 2016, the Occupational Safety and Health Administration (OSHA) announced a final rule changing the way it collects, and employers report, workplace injury and illness data. Under these new regulations, covered employers will be required to submit injury and illness data to OSHA electronically, and some of this data will be made publicly available on the OSHA website. OSHA has explained that its intention in making this data publicly available is to “nudge” employers to increase their focus on safety.

OSHA Delays Enforcement of Anti-Retaliation Provision Until December 1

OSHA has decided once again to postpone enforcement of the anti-retaliation provision contained in its new injury and illness tracking rule until December 1 in order to allow a federal court time to review a motion challenging the provision. OSHA initially intended to implement the provision on August 10, 2016. At that time, the roll-out was delayed to allow time for outreach to the community the rule affects.

OSHA Update – Enforcement of Anti-Retaliation Rules Delayed

OSHA has announced it will delay enforcement of the employee involvement provisions of its recently published final rule to Improve Tracking of Workplace Injuries and Illnesses until December 1, 2016. The delay is in response to a request by a federal district court in Texas, which is considering a complaint challenging implementation of the rule. As discussed in our June 20, 2016 Alert, the rule’s anti-retaliation provision states that procedures that deter or discourage employee reporting are not reasonable. This provision has created concern regarding the validity of employer disciplinary policies, mandatory post-incident drug testing, and employee safety incentive plans. Additionally, OSHA’s position that blanket post-incident drug testing policies deter employees from reporting workplace injuries has caused concern among employers regarding the validity of such policies.

Student Health Insurance Plans and the ACA: Agencies Provide Enforcement Relief that Allows Colleges and Universities to Continue Subsidizing the Cost of Student Health Insurance Plans for Graduate Student Employees

Late last week, the Departments of Labor (“DOL”), Health and Human Services (“HHS”) and the Treasury (collectively, the “Agencies”) issued a very welcome FAQ that will allow higher education institutions to continue subsidizing the cost of student health insurance coverage for graduate student employees, for at least the foreseeable future. Under the FAQ, the agencies have stated that the Affordable Care Act’s market reform requirements will not apply to these types of subsidy arrangements, pending further guidance. Colleges and universities may therefore continue to subsidize the cost of student health insurance coverage for graduate and other student employees. Importantly, the guidance only applies to higher education employers and does not, for example, allow other types of employers to subsidize the cost of individual insurance policies for employees.

OSHA Agrees to Further Extension for Anti-retaliation Provisions

In response to a request from a federal judge, OSHA has agreed to extend the effective date of the anti-retaliation provisions in it’s new final rule, Improve Tracking of Workplace Injuries and Illnesses until December 1, 2016.

New OSHA Anti-retaliation Regulations

New OSHA anti-retaliation regulations impact post-accident drug testing policies and workplace safety incentive programs.

Whistle While You Work: OSHA Draft Policy Seeks to Prevent Retaliation for Employees Reporting Safety Concerns

On November 6, 2015, OSHA issued a draft policy entitled “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation,” for which it informally seeks public comment through January 19, 2016. The draft policy seeks to facilitate an environment in which employees can freely raise OSHA concerns without the fear of employer retaliation. This whistleblower protection policy specifically focuses on improving safety incentive programs that employers could use in a retaliatory manner against workers who raise such concerns.
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