OSHA’s Anti-Retaliation Rule is in Effect for Now
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With many Obama administration policies being reviewed and reconsidered under the current administration, you may be wondering what is the status of Federal OSHA’s anti-retaliation rule. The Trump administration has signaled that it intends to reconsider the rule, which took effect December 1, 2016. The rule clarified the agency’s existing position that employers must have a reasonable procedure for employees to report on-the-job injuries and illnesses, notify employees of their rights (which can be done by displaying the OSHA poster), and ensure that employment policies don’t discourage workers from reporting those injuries and illnesses.

In its commentary to the rule, OSHA under the Obama administration called out three specific areas of concern:

1) prompt injury-reporting policies that punish workers who delay reporting an injury that took time to manifest;
2) safety incentive programs that reward workers for not reporting on-the-job injuries; and
3) post-accident drug and alcohol testing policies that automatically test injured workers even if no evidence exists that substance abuse could have contributed to the injury.

These rules can be read in detail at 29 CFR 1904.35 and 1904.36.

The anti-retaliation rule was initially published in May 2016 as part of a package that included new requirements for covered employers to electronically report annual illness and injury data. That electronic filing deadline is proposed to be delayed until December 1, 2017. In the most recent Federal Register notice delaying the electronic filing, OSHA said it intends to issue a separate proposal to “reconsider, revise, or remove” other aspects of the recordkeeping rule. This signals that the anti-retaliation rule will be scrutinized by the new administration.

Employers in Idaho, Montana, and Oregon are currently subject to the anti-retaliation rules. Idaho and Montana are directly governed by Federal OSHA. Oregon OSHA officially adopted the anti-retaliation rules effective May 1, 2017. Cal/OSHA has stated that the anti-retaliation rules (along with the electronic reporting rules) are part of a proposed rulemaking package that is currently under review. Washington’s Division of Occupational Safety and Health (DOSH) is still pondering how to update its regulations. However, even though employers in California and Washington haven’t yet officially adopted OSHA’s rules, it’s still illegal in those states to retaliate against an employee for reporting a work-related injury.

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