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Enforcement of anti-retaliation provisions of injury and illness tracking rule delayed until December 1

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. The anti-retaliation provisions were previously delayed until Nov. 10 to allow time for outreach to the regulated community. Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

Memorandum interpreting the new anti-retaliation provisions includes guidance on disciplinary, incentive and drug testing programs

A memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule, "Improve Tracking of Workplace of Injuries and Illnesses," provides examples of how disciplinary, drug testing, and incentive programs may be viewed by regulators. While programs should never deter employees from reporting work-related injuries or illnesses, the rule does not ban programs that are appropriate.

For example, pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report would violate the rule. On the other hand, disciplining an employee for bypassing a guard, contrary to the employer's safety policies, even if the employee is injured would not violate the rule.

The memorandum also makes it clear that "drug testing conducted under a state worker's compensation law or other state or federal law" does not violate the new rule. However, "the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness."

Incentives are addressed with this example: An employer promises to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. But, if the employer cancels the raffle one month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate the rule. Alternately, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would be allowed.

Safety and Health Program Management Guidelines updated for first time in 30 years

Designed to help employers establish a methodical approach to improving safety at their workplaces, the core elements of the updated Safety and Health Program Management Guidelines include:

D.C. Circuit vacates memorandum narrowing the retail exemption from the PSM standard

A July 2015 memorandum that required coverage under the onerous PSM standard for many previously exempt fertilizer and farm supply retailers has been vacated by the D.C. Circuit court. The petitioners' challenge argued that the memorandum was actually a standard, not an interpretation, and that, in turn, was required to follow rulemaking procedures, including notice-and-comment requirements, and the court agreed. This is unlikely to go away, but stakeholders will have the opportunity to be heard through notice-and-comment procedures.

Proposed rule changes

Improvements to respiratory protection standard

A Notice of Proposed Rulemaking was issued to add two quantitative fit-testing protocols to the agency's Respiratory Protection Standard. Comments are due by Dec.6.

Rules proposed to streamline 18 standards

Eighteen changes to the agency's recordkeeping, general industry, maritime and construction standards are proposed to revise provisions in standards that may be confusing, outdated, or unnecessary. The Standard, New England's Insurance Weekly, has published a good summary. Comments are due by Dec. 5.

New fact sheets focus on analyses

Root causes explains why and how to perform a root cause analysis after an incident or near miss occurs at a facility.

The Use of Metrics in Process Safety Management Facilities provides employers with a list of metrics tracked by facilities in the Voluntary Protection Programs that handle highly hazardous chemicals.

New video on how to file a complaint

A one-minute video, available in English and Spanish, is designed to inform workers exposed to jobsite hazards of their right to file a complaint.



Case study addressing the safety obligations of staffing companies and host employers to temporary workers

The National Safety Council and the American Staffing Association have jointly published a case study based on past citations issued by OSHA in connection with temporary workers' on-the-job injuries.

Recent fines and awards








New York



Detailed descriptions of the citations above and other OSHA citations can be found here.