Enforcement date of OSHA rule delayed again -- until December 1

Tommy Eden

The Occupational Safety and Health Administration has delayed for a second time the enforcement date of its new "Reasonable Reporting Procedure" rule as it pertains to post-accident drug testing and safety incentive programs. The new enforcement date for the rule is December 1.

The rule was scheduled to take effect on August 10, and then OSHA extended the enforcement deadline to November 1.

As this blog has reported previously, employer groups filed suit in July in federal court in Dallas, seeking to enjoin (block) the rule. In an order dated October 14, U.S. District Judge Sam A. Lindsay asked the employer groups and the government to agree to delay the effective date for one more month -- until December 1 -- so that the parties would have time to fully brief the issues.

OSHA announced on Tuesday that it would agree to the delay.

The delay of enforcement memorandum sent on Tuesday to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty stated as follows:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses; requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions became effective on August 10, 2016.

OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions. OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.

(Legal citations omitted.)

Constangy's prior coverage of the "Reasonable Reporting Procedures" rule is available below:

*OSHA Rule requires public reporting of injuries by employers, bans "unreasonable" requirements for employees to report

*Don't Panic! Employers should be able to continue most post-accident drug tests under OSHA's "reasonable reporting procedure" rule

*The Good News and the Bad News (about the first delay, to November 1)

*OSHA provides guidance on its new "Reasonable Reporting Procedure" rule

*OSHA DELAYS enforcement date for new anti-retaliation rule that would restrict post-accident drug testing and safety incentive programs

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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