Legislative update

OSHA delays electronic record-keeping rule, but anti-retaliation provisions remain

OSHA announced on its website on May 17 that it "is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available." There was no word on when, or whether, a new deadline would be set for data submission.

Although there were indications that OSHA had beta tested a secure portal with the help of a few national employers and employment organizations, the suspension did not come as a surprise. At the time the rule was published, it was noted that the portal would be live on February 1, 2017, but, after the election, there were no updates from OSHA about how precisely the database would function or when it would go live.

It's uncertain what will happen going forward. According to the Washington Post, an OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers' "concerns about meeting their reporting obligations."

There are several possibilities. The Administration may formally rollback the new rule through notice and comment rulemaking to rescind all or at least this portion of the rule. Another possibility is that the rule stands or stands without the public viewing aspects. There are two ongoing lawsuits challenging the rule, which are in the early stages of litigation. It's possible the agency will wait for the outcome of the cases. Also, the new Secretary of Labor Alexander Acosta has only recently assumed his position, so action may be delayed until Secretary Acosta's new team at OSHA is in place. The rule is not dead... it's wait and see.

Anti-retaliation provisions remain

The electronic filing delay does not affect the anti-retaliation provisions of the rule that went into effect in December 2016. Employers must inform workers of their right to report work-related injuries and illnesses, and they can't retaliate against employees for doing so.

According to OSHA guidance on the anti-retaliation provisions, employers must establish reasonable procedures for reporting injuries. The guidance recommends limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

Business groups have also challenged this provision in court, arguing that OSHA exceeded its authority. A court denied a preliminary injunction that would have blocked the provisions; however, it is still possible the court could find it illegal.

While it is unknown how aggressive enforcement efforts will be, the rule is in effect and employers need to comply. Employers should have reviewed drug testing policies and safety incentive programs in light of OSHA's guidance. Also, they should document informing employees of the right to report injuries without retaliation and how to report, as well as post the latest version of OSHA's Rights poster.

OSHA rescinds walkaround rule

OSHA has changed its policy on allowing employees at non-union workplaces to choose a union-affiliated representative for "walkaround" inspections, according to an April 25 memo sent to regional administrators.

The policy began in 2013 but was being challenged in court by the National Federation of Independent Business, with help from the Pacific Legal Foundation. Following the memo, the lawsuit was withdrawn on April 27.

OSHA delays enforcement of silica standard for construction

Enforcement of the silica standard for construction was set to begin June 23, but has been delayed to Sept. 23. The delay is necessary for OSHA "to conduct additional outreach and provide educational materials and guidance for employers," according to the agency.

Despite the delay, OSHA said it expects employers in the construction industry to take steps toward implementing the standard's requirements.

Feds won't tackle medical marijuana

Given Attorney General Jeff Sessions' negative position, there was much speculation if there would be efforts to resolve the conflict between federal and state laws on medical marijuana, which is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, but is now legal in 29 states. President Trump signed House Resolution 244, a $1.1 trillion appropriations plan that includes language that will prevent the federal government from spending money to fight medical marijuana.

According to a press statement from the White House, a section of the bill "provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories."

DOL withdraws guidance on employee definitions

On June 6, the U.S. Department of Labor withdrew Obama administration guidance on joint employment and independent contractors that expanded the definition of employees. The statement withdrawing the guidance noted: "Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department's long-standing regulations and case law." It is expected, however, that employers, who can now rely on the law rather than administrative interpretations, will laud the news.