Mary Madison, RN, RAC-CT, CDP
Clinical Consultant – Briggs Healthcare
On Friday, September 3, 2021, this OSHA final interpretive rule was posted in the Federal Register. This rule is also effective as of September 3, 2021 as a result. The posting in the FR is 5 pages in length.
The Occupational Safety and Health Administration (OSHA) is amending one of the rules interpreting the anti-retaliation provision of the Occupational Safety and Health Act of 1970 (OSH Act or Act) to clarify that the test for showing a nexus between protected activity and adverse action is ‘‘but-for’’ causation.
OSHA is revising the interpretive rule at 29 CFR 1977.6(b), which addresses causation under the anti-retaliation (colloquially ‘‘whistleblower’’) provision of the OSH Act, section 11(c), 29 U.S.C. 660(c). For the reasons explained in the following sections, the agency is removing outdated language to clarify that the only means by which the Secretary of Labor (Secretary) may prove a causal connection between protected activity and adverse action under the OSH Act is to show that ‘‘but for’’ the protected activity the employee would not have suffered the adverse action.
In 1973, OSHA established Part 1977 – Discrimination against Employees under OSH Act of 1970 that contains interpretive regulations and procedures governing the agency’s administration of cases under section 11(c), which prohibits employers from retaliating against employees because they have engaged in protected activity, including complaining about unsafe or unhealthful working conditions.
The revised final interpretive rule clarifies the causal connection between the protected activity and the adverse action (29 CFR 1977.6). This change brings the provision in line with the Supreme Court’s holdings in Gross v. FBL Financial Services, Inc., Univ. of Tex. Sw. Med. Ctr. v. Nassar, and Bostock v. Clay County, Georgia. The agency also revised the regulation by adding terms to reflect the full scope of section 11(c)’s prohibition against retaliation.
For additional as well as background information, check out Whistleblower Laws Enforced by OSHA.