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US Department of Labor publishes final interpretive rule amending one of the rules interpreting the OSH Act’s anti-retaliation provision

WASHINGTON, DC – The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has published a final interpretive rule that changes a rule interpreting the anti-retaliation provision of the Occupational Safety and Health Act of 1970.

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. 

The final rule is effective on Sept. 3, 2021.

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