In response to employer complaints and a new federal lawsuit, on July 13, the federal Occupational Safety and Health Administration announced a delay in enforcement of the non-retaliation portions of its new injury and illness reporting regulations. The requirements had been scheduled to take effect August 10, but are now delayed three months until November 1.

Most attention regarding the new rules focused on the requirement that employers electronically report summary injury and illness information to OSHA, which will make such reports available to the general public. However, other portions of the rules require that employers (1) notify employees of their protection from retaliation for reporting workplace injuries or illnesses; (2) prohibit post-accident drug testing that deters or retaliates against employees who report injuries; and (3) prohibit safety award incentives that deter reporting workplace injuries. While OSHA already prohibits such retaliation, the agency believes that additional measures are necessary to ensure accurate reporting.

The lawsuit alleges that OSHA exceeded its statutory authority in adopting these measures, and that the agency failed to give affected employers adequate notice and opportunity to comment on these provisions. While OSHA stated that the rule would not prohibit all post-accident testing, the agency failed to articulate precisely how existing drug and alcohol testing programs will be impacted by the new rule. It appears to restrict mandatory, automatic testing, while allowing testing where there is some indication of intoxication at the time of the accident. The same holds true for safety incentive programs, although in recent years, many employers have changed or eliminated programs that provide financial or other awards for accident-free workdays.

OSHA’s intends these provisions to encourage employees to report all workplace injuries and illnesses. The lawsuit claims that by eliminating or restricting post-accident testing and safety incentive programs, OSHA actually prohibits management tools that contribute to safer workplaces.