No last minute "stay" of federal OSHA "no retaliation" rules

Russ Samson Iowa Employment & Labor Law Dickinson Law Des Moines, Iowa

Posted on 12/01/2016 at 06:58 AM by Russell Samson

On November 28, 2016, Dallas, Texas based United States District Court Judge Sam Lindsay issued an order denying a preliminary injunction in an action challenging a portion of the OSHA final rule in reporting workplace injuries.  The lawsuit was brought by several trade associations, a workers’ compensation insurance provider and some companies that had purchased workers’ compensation insurance from that carrier.  In the underlying action, the plaintiffs sought a declaration that:

Subparagraphs 1904.35(b)(1)(I), (iii), and (iv) of the final rule issued by [OSHA], titled “Improve Tracking Workplace Injuries and Illnesses”, 81 Fed. Reg. 29,624 (May 12, 2016), as revised at 81 Fed. Reg. 31,854 (May 20, 2016), hereinafter referred to as “the New Rule,” are unlawful to the extent that they prohibit or otherwise limit incident-based employer safety incentive programs and/or routine mandatory post- accident drug testing programs.

In the litigation, the plaintiffs also sought a nationwide preliminary injunction to enjoin the defendants (the agency as well as the Secretary of Labor and an Assistant Secretary of Labor) from implementing the rule found at 29 C.F.R. § 1904.35(b)(1) until after the court ruled on the merits of the litigation. 

In a July 27, 2016, blog post that can be found here, we discussed this particular aspect of the much broader OSHA rule.  As we noted there, the new 29 CFR §1904.35 requires employers to:

  • Establish a “reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately” and
  • Inform each employee of the procedure for reporting work-related injuries and illnesses., and
  • Inform each employee not only that the employee has the right to report work-related injuries and illnesses, but that the employer is prohibited from discharging or in any manner discriminating against an employee who makes such a report.

The new rule amplifies the phrase “reasonable procedure” with the admonition, “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury.”  In the July 2016 blog post, we noted that earlier that month the agency had instructed its Regional Administrators to delay enforcement of the no-retaliation aspects until November 1, 2106 “[i]n order to provide the opportunity to conduct additional outreach to the regulated community.  On October 19, 2016, the federal Occupational Safety and Health Administration announced that at the request of the federal court in Texas where the litigation was pending, it had agreed to further delay enforcement of the anti-retaliation provisions in its injury and illness tracking rule until Dec. 1, 2016.

In the July 2016 blog post, I noted an interest to see the promised educational materials and enforcement guidance.  Also on October 19, 2016, the Deputy Assistant Secretary for OSHA issued a Memorandum to Regional Administrators -- which can be found here -- explaining the “reasonable procedure” and the “no retaliation” provisions.  While an in-depth discussion is the grist for a separate post, it is felt worthy of note that the Regional Administrators were told that while the agency discussed three different types of policies which might lead to retaliation -- disciplinary policies, post-accident drug testing policies, and employee incentive programs – in the preamble to the final rule the agency’s comments should not be read as categorically prohibiting all kinds of such policies.

As has been noted in both of our blog posts on the new OSHA “reporting of injuries” rules, Iowa is an “OSHA state-plan” state.  As such, Iowa employers who are subject to Iowa’s state law and to Iowa’s state enforcement need not be concerned about the December 1, 2016, deadline.   That said, assuming that the State of Iowa wishes to maintain a separate, federally approved plan, it will need to put in place regulations in this area which are no less stringent than those of the federal OSHA.  One might wish to monitor the Iowa Administrative Bulletin for the adoption of such a rule in Iowa.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson


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