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OSHA Anti-Retaliation Injunction Denied

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction filed against the Occupational Safety and Health Administration (OSHA) regarding the anti-retaliation provisions of OSHA’s new Improved Tracking of Workplace Injuries and Illnesses Regulation.

OSHA announced new regulations in May 2016 addressing reporting of injuries and illnesses. These rules included certain anti-retaliation provisions that potentially restrict safety incentives, immediate injury reporting rules, and post-accident drug testing. The rules initially were to take effect in August. (See our previous alerts on the final rule: Part 1 and Part 2.)

We previously explained that OSHA announced in a press release on July 13, 2016, that it was pushing back the effective date of the anti-retaliation provisions of the final rule from August 10 to November 1, 2016. The purpose of the delay was so OSHA could conduct “additional outreach and provide educational materials and guidance for employers.”

Then, we announced on October 20, 2016, that the federal court in the Northern District of Texas prompted OSHA to self-impose an additional delay of the anti-retaliation provisions of the final rule until December 1, 2016. Accordingly, the new deadline for the effective date of the anti-retaliation provisions in the final rule is December 1, 2016.

Now that the Texas federal district court has denied the preliminary injunction, OSHA’s regulations take effect on December 1. After that date, OSHA may investigate complaints by employees that suffered retaliation for reporting an injury by virtue of an employer’s policies, such as post-accident testing, incentive programs (where employees as individuals or as a group lose, or do not receive, certain pay), or late reporting of an injury by the employee.

Starting December 1, OSHA will be able to issue citations and penalties and require abatement, including reinstatement and financial compensation to terminated employees, order payment of revoked incentives and other remedies to make the employee whole for violations of the anti-retaliation provisions of the final rule. Employers are also required to provide information to employees regarding injury reporting and the requirements that prevent employers from retaliating against employees.  

While the decision only denies the preliminary injunction, and a permanent injunction is still a possibility later, the regulation will take effect this week, causing many employers to change their policies pending the outcome of the case. There may also be regulatory changes following the change of the presidential administration early next year. But for now, these regulations are the law, and employers should therefore review their policies immediately.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 334

About this Author

Denise Greathouse, member, Michael best law firm, labor and employment  law

Denise represents management clients in regard to labor and employment matters. Clients in sectors such as construction, transportation, manufacturing, healthcare, food, and education turn to her for informed guidance on matters involving:

  • Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) issues, including investigating, defending citations and assisting with abatement

  • Workplace investigations, including defending claims regarding matters including...

Charles Palmer, Michael Best Law Firm, Employment Law Litigation Attorney
Managing Partner

Chuck is a go-to lawyer for complex cases involving employment law, including independent contractor and joint employment matters. Clients rely on his years of experience in dealing with state and federal enforcement agencies to develop human resource, safety and environmental policies and practices that prevent problems and save them significant expense.

Chuck has defended employers in more than 1,000 Occupational Safety and Health Administration (OSHA) citation cases over the past 26 years, including multiple six-figure and/or fatality...

Benjamin Johnson, employment defense litigation, michael best, trade secret legal counsel,

Ben brings a winning combination of big picture strategies and a collegial approach to his work defending employers against employment discrimination claims. A diverse range of clients value his defense against Americans with Disabilities Act (ADA) claims, as well as his counsel on ADA issues such as reasonable accommodation and service animal requests in order to avoid future claims.

He also frequently advises on wage and hour matters, including auditing employee classifications to minimize potential employer liability, and defends clients...

Judson Stelter, Michael Best Law Firm, Labor and Employment Attorney
Senior Counsel

Jud represents management in all phases of employment law, including issues related to discrimination and harassment, wages and hours, family and medical leave, employment contracts, non-compete agreements, criminal background checks, and affirmative action. He also assists employers in investigating and responding to charges of discrimination and unfair labor practices, and advises clients on the avoidance and/or management of litigation in these areas.

Jud has experience representing clients before administrative agencies such as the...

Arthur Gollwitzer, Trial Attorney, Appeals, Patent, Copyright Lawyer, Trade Secret Litigation

Arthur Gollwitzer is a partner in the Litigation Practice Group. Mr. Gollwitzer combines trial and appellate experience gained as a federal prosecutor in the Southern District of New York with twenty years of experience, including jury trials and appeals, handling patent, copyright, trademark, and trade secret litigation. Mr. Gollwitzer also has experience in a wide range of litigation outside of intellectual property and criminal law, including employment, partnership and breach of fiduciary duty, and breach of contract litigation.

Prior Work...