By Eric J. Conn and Dan C. Deacon
OSHA has once again delayed enforcement of the controversial anti-retaliation provisions of its new electronic injury and illness recordkeeping rule. OSHA issued its second delay of the effective date of enforcement of this portion of the rule at the request of Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas. Judge Lindsay is presiding over a legal challenge to this portion of the rule filed by industry plaintiffs, and asked OSHA to delay enforcement of the anti-retaliation provisions to give the court additional time to consider a pending motion for preliminary injunction to indefinitely delay enforcement. The new enforcement delay runs through December 1, 2016.
As we have described in previous articles, OSHA included in the new electronic recordkeeping rule, a set of new obligations requiring employers to implement “reasonable reporting” procedures for employees to report to their employers work-related injuries. Also included are a broad and vague new set of provisions that expand OSHA’s enforcement authority to prevent employer retaliation against employees who report injuries and illnesses. OSHA has provided little guidance on precisely what the agency intends by “reasonable” reporting procedures or what types of policies may violate the new anti-retaliation provisions, but we understand from past policy statements and regulatory history that OSHA will at least focus on reporting deadlines, safety incentive programs, post-injury drug testing, and management compensation or bonuses tied to injury rates.
Industry plaintiffs filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was promulgated, challenging these anti-retaliation elements of the rule on the grounds that OSHA did not show that the anti-relation provisions would actually reduce injury rates, and further that the agency did not follow requirements of the Administrative Procedures Act (“APA”) in the rulemaking process. The plaintiffs sought a preliminary injunction seeking to prevent OSHA from beginning to enforce these provisions pending a decision on the underlying legal challenge.
Literally one day after the emergency motion seeking a preliminary injunction was filed, on July 13th, OSHA announced it would voluntarily delay enforcement of the anti-retaliation provisions of the new rule until November 1, 2016 – nearly three months later than the original effective date of August 10, 2016 for this portion of the rule. Interestingly, however, a little over a month later, on August 19, 2016, OSHA filed an opposition to industry’s preliminary injunction motion urging the judge to not delay enforcement of the anti-retaliation provisions, stating that:
the plaintiffs “have established no harm at all, much less irreparable harm [associated with enforcement of these provisions].” OSHA argued, by contrast, that it “has determined that the anti-retaliation provision is necessary for the viability of its broader Recordkeeping Rule . . .”
While the court was in the process of reviewing the parties’ submissions, on September 26, 2016, a skirmish broke out between the parties when OSHA filed what amounts to a surreply – normally not allowed under the court’s rules of procedure – on the basis that the plaintiffs had for the first time asked in their reply brief to apply the scope of the requested injunction to “any jurisdiction where Plaintiffs are located, i.e., nationally.” The plaintiffs responded by strongly disagreeing that their requested nationwide injunctive relief was requested for the first time in their reply brief, and therefore opposing OSHA’s request for further opportunity to brief the issue.
In a rare development, last week — at least in part because of the parties’ skirmish over the scope of the injunctive relief being requested — Judge Lindsay issued an order requesting OSHA to extend the stay of enforcement of the challenged portions of the rule until December 1, 2016. Judge Lindsay stated in his October 14th Order that additional briefing by the parties should:
focus on “the issues of (1) whether a nationwide injunction that applies to Plaintiffs, as well as nonparties, is warranted in this case; and (2) whether such an injunction can be lawfully imposed by the court.”
OSHA advised the court yesterday that the Agency would agree to extend the stay of enforcement of the challenged portion of the rule, and then publicly announced its decision to postpone enforcement until December 1, 2016.
In light of these recent developments, employers can take some comfort in the fact that there will be a decision by the District Court on Industry’s request for injunctive relief prohibiting enforcement of the anti-retaliation portions of the rule prior to the date the new rule kicks in. Notwithstanding, it is still wise for employers to understand how these new provisions of the rule will affect their safety and health programs, and be prepared to comply with the requirements if the preliminary injunction is not granted. Stay tuned as the court case evolves.
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Observation: Ironically chilling effects suppress the identification of chilling effects. There is a vicious cycle of chilling effects reinforcing chilling effects until the organization is mired in Omertà .