By Mark A. Lies, II, Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

worksafetySeyfarth Synopsis: After a lawsuit was filed against OSHA challenging its May 2016 retaliation and recordkeeping rule, OSHA again delays the rule’s effective date.

OSHA announced today that it has again delayed the effective date for enforcement of the anti-retaliation provisions of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The rule was originally scheduled to take effect in August 2016, but is now scheduled to take effect on December 1, 2016.

We had previously 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 also blogged about, 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 states that it is delaying enforcement of the anti-retaliation provisions because the “U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions.” That motion is a preliminary injunction motion brought by the plaintiffs asking the court to stay enforcement of the rule nationwide until it has been fully litigated in the courts.

In the TEXO ABC/AGC lawsuit, the plaintiffs allege 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 continue to 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.