The U.S. Occupational Safety and Health Administration (OSHA) has again delayed enforcement of the anti-retaliation provisions included in its revised record-keeping regulation, this time until Dec. 1, 2016. The delay occurs at the request of Northern District of Texas Judge Sam Lindsay, who is considering the complaint and motion for preliminary injunction filed by several industry groups challenging the anti-retaliation provisions to the extent that OSHA seeks to limit routine post-accident drug testing and incident-based safety incentive and recognition plans. The anti-retaliation provisions were originally slated for implementation on Aug. 10, 2016, but were delayed until Nov. 1, 2016, to provide time for developing compliance guidance clarifying the impact of the provisions on post-accident drug testing and safety incentive plans. In a letter to Regional Administrators, OSHA Deputy Assistant Secretary Dorothy Dougherty said the final rule's anti-retaliation provisions "clarify the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses [be] reasonable [and] not deter or discourage reasonable employees from reporting, [and] incorporates into Part 1904 the existing statutory prohibition [on retaliation]."
Lexology (10/18/16) Powell, Shontell; Bailey, Melissa A.