Last week a federal judge requested that OSHA agree to further extend the November 1st effective date for the anti-retaliation provisions in OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule.

In May 2016, OSHA published the final rule requiring electronic submission of Part 1904 recordkeeping records to OSHA depending on the employer’s size and industry. Specifically, employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment are required to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis and employers with more than 20 but less than 250 employees in certain identified industries are required to electronically submit their 300A form on an annual basis.

Additionally, the final rule establishes employer injury reporting policies and anti-retaliation provisions. The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria.

Specifically, employers must inform employees of the following:

  • Procedures for reporting work-related injuries and illnesses promptly and accurately.  According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses;
  • Employees have the right to report work-related injuries and illnesses;
  • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

Under the anti-retaliation provisions OSHA has indicated that certain safety incentive policies and post-incident drug testing policies will be considered as discriminatory because, according to OSHA, they discourage employees from reporting work-related injuries and illnesses. The final rule was challenged by several trade associations and a preliminary injunction was sought to delay the effective date of the anti-retaliation provisions until a decision in the case was reached.   The preliminary injunction requested nationwide relief, including relief for all employers.  OSHA is objecting to this preliminary injunction and the request for nationwide relief.

In an Order issued on October 14, the judge requested that OSHA grant an additional extension until December 1, 2016 to allow the parties additional time to brief the issue of whether a nationwide injunction for the parties as well as non-parties should be granted. OSHA has until October 18th to notify the court in writing as to whether it will grant the extension until December 1, 2016.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.