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OSHA Retaliation Enforcement Rule Delayed Until December 1, 2016

The Occupational Safety and Health Administration (OSHA) announced new regulations in May 2016 addressing reporting of injuries and illnesses. These rules included certain anti-retaliation provisions that may restrict safety incentives, immediate injury reporting rules, and drug testing. The rules initially were to take effect in August of 2016. (For more information, view our previous alerts on the final rule: Part 1 & Part 2).

On July 13, 2016, OSHA announced that it was pushing back the effective date of the anti-retaliation provisions of the final rule from August 10, 2016 to November 1, 2016. A link to OSHA’s original press release can be found here. The purpose of the delay was so OSHA could conduct “additional outreach and provide educational materials and guidance for employers.”

A Texas court has now prompted OSHA to self-impose an additional delay until December 1, 2016, before the anti-retaliation provisions of the final rule will be effective. This latest delay is directly related to a legal challenge to the final rule filed by the Manufacturers’ Center for Legal Action on July 8, 2016, in the U.S. District Court for the Northern District of Texas. The Manufacturers’ Center is asking for a declaration that, among other things, the anti-retaliation provisions are unlawful and exceed OSHA’s statutory authority.

Additionally, the Manufacturers’ Center is seeking emergency injunctive relief to postpone the implementation of portions of the final rule pending the resolution of its legal challenge. Although not explicitly stated initially, the Manufacturers’ Center recently clarified that it is requesting the injunctive relief to be applied nationwide and to include entities that are not parties to the legal challenge. OSHA objected to this request, claiming the nationwide injunction request was late and is overly broad.

On October 14, 2016, the U.S. District Court for the Northern District of Texas issued an Order, stating that further briefing by the parties was needed to determine the necessary scope and propriety of the injunctive relief that the Manufacturers’ Center is seeking. To accommodate the additional briefing, the court essentially directed OSHA to voluntarily agree to extend the deadline of the final rule to December 1, 2016, and OSHA subsequently agreed. Accordingly, the new deadline for the effective date of the final rule’s anti-retaliation provisions is December 1.

A copy of OSHA’s memorandum extending the deadline is available here.

The next step in this process should be a ruling by the court on the nationwide injunction. Stay tuned as we monitor the dramatic changes that this new rule may bring.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 294

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...