By James L. Curtis, Brent I. Clark, and Craig B. Simonsen

worksafetySeyfarth Synopsis: After a lawsuit was filed against OSHA challenging its May 2016 retaliation and recordkeeping rule, OSHA announced a three month delay in the rule’s effective date.

OSHA announced yesterday that it has delayed the effective date for enforcement of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). “Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016.”

We had blogged about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Then in response to the new rule, and which we blogged yesterday, the National Association of Manufacturers (NAM) and others brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

In its announcement, OSHA claims that it is delaying enforcement of the anti-retaliation provisions “to conduct additional outreach and provide educational materials and guidance for employers.” No mention is made of the lawsuit, but obviously the timing of OSHA’s announced delay on the heels of the lawsuit is curious.

In the TEXO ABC/AGC lawsuit, the complainant alleges that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”

The lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

We will keep you updated as this issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.