In July 2016, several trade associations and others (“plaintiffs”) filed suit against OSHA challenging the agency’s anti-retaliation provisions in the final rule, Improve Tracking of Workplace Injuries and Illnesses (81 Fed. Reg. 29,624) (May 12, 2016). The legal challenge alleged the final rule exceeded OSHA’s statutory authority, violated the Administrative Procedures Act and the Occupational Safety and Health Act, and requested the Court to declare the final Rule unlawful and set it aside.

Additionally, the plaintiff’s also requested a nationwide preliminary injunction to permanently delay the effective date of the standard until a decision is reached in the case. Yesterday, the Court denied the plaintiff’s motion for a preliminary injunction on the grounds that the plaintiffs could not show irreparable harm would be incurred without an injunction or that an injunction was necessary to protect the public interest.

The impact of this decision is that employers will have to begin to comply with OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses by December 1, 2016.  The “anti-retaliation” provisions set out in sections 1904.35 and 1904.36(b)(1) are effective December 1, 2016 and the remaining provisions pertaining to the electronic submission of recordkeeping information in section 1904.41 are effective January 1, 2017 with the first electronic submission due by July 1, 2017.

A decision on the merits of the legal challenge and the validity of the final Rule has not yet been made.

 

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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.

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