The Occupational Safety and Health Administration has pushed back the enforcement date of certain portions of its new injury-and-illness record-keeping rule that were to have gone into effect in August.
The agency on July 13 moved the enforcement date to Nov. 1 from Aug. 10. OSHA's action came one day after a coalition of industry groups filed an emergency motion in a federal district court to prevent the provisions from going into effect.
For the first time, the provisions would prohibit “incident-based” employer incentive programs and routine mandatory post-incident drug-testing programs. Construction organizations say that, when such programs are tied to safety incidents on jobsites, they help employers to make worksites safer, often by identifying the source or cause of an injury or other incident.
Greg Sizemore, the Associated Builders and Contractors’ vice president of health, safety, environment and workforce development, said in a statement, “It’s inconceivable to us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root-cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”
In the rule, which OSHA issued in its final form on May 11, the agency says programs that require post-incident drug testing unlawfully retaliate against employees and can create a culture of intimidation.
Kimberly Darby, an OSHA spokeswoman, says the requirements that are being postponed prevent employers from discriminating against or discharging employees who report a injury or illness. "We delayed enforcement of this provision because we wanted to take the time to provide more compliance assistance to stakeholders," she says.
Organized labor supports the OSHA rule. AFL-CIO President Richard Trumka said in a statement issued in May that the regulations "will bring workplace injury and illness reporting into the 21st century and provide important new protections to workers who report injuries."
The coalition, which includes ABC, the National Association of Manufacturers and the American Fuel & Petrochemical Manufacturers, filed an emergency motion in the U.S. District Court for the Northern District of Texas, Dallas Division, requesting a preliminary injunction against the anti-retaliation provisions.
Industry groups generally oppose the entire rule, which they say would not improve jobsite safety but could increase lawsuits and public shaming of employers. The rule requires employers to file safety-incident reports electronically. Those reports are publicly available online.
Jeff Leieritz, an ABC spokesman, on July 28 said the groups filed the motion because the anti-retaliation provisions “require employers to take more immediate action in advance of the effective date.” A challenge to the broader rule, which goes into effect in 2017, “is under serious consideration,” he adds.
Advocates of the regulation say the electronic reporting requirements will create transparency and improve the accuracy of data about jobsite safety, which should create better outcomes.