On Tuesday, October 18, the Occupational Safety and Health Administration announced that it will once again postpone the enforcement date of the “employee involvement” provisions of its new rule on drug-testing, retaliation claims, and accident reporting, entitled “Improve Tracking of Workplace Injuries and Illnesses,” 81 Fed. Reg. 29624 (May 12, 2016).  This is the second such delay since the final rule was published in May.  OSHA had initially planned for the rule to take effect in August, but the agency later announced a delay in enforcement that would last until November 1.  This second, most recent delay in enforcement is set to last until December 1.

The agency has implemented the second extension in response to a request from United States District Judge Sam Lindsay to delay the enforcement date. Judge Lindsay is presiding in a case filed in the U.S. District Court for the Northern District of Texas (in Dallas) in which the National Association of Manufacturers and other industry groups and private companies have sought injunctive relief to prevent enforcement of certain provisions in the new rule. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).  Judge Lindsay informed OSHA (and the other parties) that the additional time was necessary for him to consider the plaintiffs’ request for a preliminary injunction, which would result in a nationwide stay in the enforcement of the rule until the rule has been fully litigated in the courts.

We will provide updates as this case continues to develop.