Property Casualty

OSHA Anti-retaliation Rule: Helpful or Overstepping Bounds?

RW Smith
RW Smith
Senior Loss Control Consultant

It depends on who you’re talking to. I’ll get to that in a minute, but first I want to provide you with an important update.

This past week, the Occupational Safety and Health Administration (OSHA) agreed — for the second time — to delay enforcement of the anti-retaliation provisions in its Injury and Illness Tracking rule until December 1, 2016.


In May 2016, OSHA released new updates to its Recordkeeping Requirements that would require many employers to electronically report their OSHA 300A forms and, for some, their OSHA 300 logs as well. What was concerning to many is that OSHA also included language restricting (possibly severely) the use of post-accident drug and alcohol testing and certain types of safety incentive programs in the workplace.

The anti-retaliation parts of the rule were originally set to go into effect August 10, 2016. But due in response to a lawsuit from various industry groups regarding the rule, OSHA agreed to delay enforcement of the anti-retaliation provisions until November 10, 2016.

This latest delay to December came from a request by the U.S. District Court for the Northern District of Texas.

The Debate

Now back to my original question. Is the rule helpful…or is OSHA overstepping its bounds?

Well, under the rule, employers are required to tell workers about their right to report work-related injuries and illnesses without fear of retaliation. Companies must implement procedures for reporting that are reasonable and don’t deter workers from reporting.

So here’s the debate:

  • OSHA is concerned that some post-injury drug testing programs might discourage workers form reporting when they’re hurt on the job. The agency feels the same way about safety incentive programs that reward employees for going a period of time without any OSHA-recordable injuries.
  • The National Association of Manufactures and Associated Builders and Contractors Inc. are among the business groups that have sued to block the anti-retaliation portions of the injury reporting rule. Some workers’ compensation insurance carriers are part of the coalition as well. The lawsuit claims OSHA overstepped its bounds with the anti-retaliation portions of the rule and also says those provisions are arbitrary. The lawsuit also questions whether OSHA has ever successfully proven its assertion that these types of safety incentive programs create peer pressure on employees to hide their workplace injuries so everyone can benefit from an award or bonus.

What’s Next

OSHA will be releasing new guidance on the anti-retaliation requirement. According to OSHA’s Assistant Secretary of Labor Dr. David Michaels, “We’ve gotten a lot of useful input from a number of different employer groups, and I think when they look at our guidance they will feel a lot more comfortable.”

But some companies are still concerned that the December 1, 2016, deadline is too soon to comply with the requirements involving drug testing. “I think we’ll be giving employers reasonable notice,” Michaels said. “I think what we will be asking them to do is something that they can do. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers, and the general public. The amount of data submitted will vary depending on the size of company and type of industry.”

If the rule sticks, companies will need to start taking action January 1, 2017.

  • Employers with 250+ employees — The new rule requires employers with 250 or more employees that are currently required to keep OSHA Injury and Illness records to electronically submit information from OSHA Forms:
    • 300 — Log of Work-Related Injuries and Illnesses,
    • 300A — Summary of Work-Related Injuries and Illnesses, and
    • 301 — Injury and Illness Incident Report
  • Employers with 20-249 employees — Companies with this number of employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from OSHA Form 300A. If you’re wondering if you need to do this, click here.

And another quick note, beginning in 2019, the submission deadline will be changed from July 1 to March 2.

We Can Help

There is a lot to digest and understand; we get it! We have several employees here at Holmes Murphy who have been dedicated to following the development of this topic for the last two years. If you have any questions, please don’t hesitate to reach out. We will help you in any way that we can!

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