On September 3rd, 2021, the Occupational Safety and Health Administration (OSHA) published a revised anti-retaliation final rule. Accordingly, the final interpretive rule changes previous anti-retaliation provisions within the Occupational Safety and Health Act of 1970 (OSH Act). Previously, OSHA released updated safety guidelines to reduce the spread of COVID-19 and its Delta variant in the workplace.
Background of OSH Act Anti-Retaliation Provisions
In brief, in 1973, OSHA established Part 1977 – Discrimination against Employees under the OSH Act of 1970 (Part 1977). Significantly, Part 1977 contains regulations and procedures governing OSHA’s administration of cases under section 11(c) of the OSH Act. Particularly, Section 11(c) generally provides that employers cannot discharge or discriminate against any employee because the employee has:
- Filed any complaint under or related to the OSH Act;
- Instituted or caused to be instituted any proceeding under or related to the OSH Act;
- Testified or is about to testify in any proceeding under or related to the OSH Act; or
- Exercised on their behalf or behalf of others any right afforded by the OSH Act.
It is important to realize that OSHA often refers to the items listed above as “whistleblower protections.” Presently, OSHA’s Whistleblower Protection Program enforces whistleblower provisions of more than 20 statutes protecting employees from retaliation for reporting violations. Specifically, under the program, employers cannot take adverse action against employees who engage in protected whistleblower activities, such as:
- firing or laying off,
- denying overtime or promotion, or
- reducing pay or hours.
Summary of the Revised Anti-Retaliation Final Rule
In general, the revised anti-retaliation final rule clarifies the connection between protected whistleblower activities and any corresponding adverse action. In essence, the final rule brings the provision in line with multiple Supreme Court decisions:
- Actions performed by an employer, or others, which adversely affect an employee are allowed if predicated upon nondiscriminatory grounds. Section 11(c) applies when the adverse action occurs because the employee has engaged in protected activities. An employee’s engagement in protected activities does not automatically render them immune from discharge or discipline for legitimate reasons. (NLRB v. Dixie Motor Coach Corp.)
- Additionally, to violate section 11(c), the employee’s protected activity need not be the primary consideration behind discharge or adverse action. If the dismissal or adverse action had not taken place ‘‘but for’’ engagement in protected activity, it violates section 11(c). (Bostock v. Clay County, Ga.; of Tex. Sw. Med. Ctr. v. Nassar.)
If a discharge or adverse action was because of protected activity, it must be proven based on that case’s facts. OSHA also revised the regulation by adding terms to reflect the full scope of section 11(c)’s prohibition against retaliation. The revised anti-retaliation final rule was effective September 3rd, 2021.