On November 28, 2016, a Texas federal judge denied a request for a preliminary injunction, which sought to enjoin implementation of the anti-retaliation provisions of the Occupational Safety and Health Administration’s (“OSHA”) new injury and reporting rule, which was unveiled by OSHA in May of this year. The final rule requires electronic reporting of workplace injuries and illnesses, requires employers to inform workers of their right to access injury and illness data, and prohibits retaliation against employees for reporting on-the-job injuries and illnesses. The new reporting requirements take effect January 2017. The anti-retaliation provisions, however, were to take effect on August 10, 2016. Click here for Saul Ewing’s May Alert on the new rule.
The anti-retaliation provisions are intended to encourage employees to report injuries. OSHA’s position is that post-accident drug testing and safety incentive programs have the effect of chilling employee willingness to report injuries. The new rule includes a preamble that appears to limit or otherwise inhibit employer drug testing policies and practices, providing that although drug testing of employees may be reasonable in “some situations, it is often perceived as an invasion of privacy[.]” More specifically, if an “injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in recent past, requiring the employee to be drug tested may inappropriately deter reporting.” The strong suggestion is that employers may only conduct post-accident drug testing if substance abuse likely contributed to the accident.
The plaintiffs, comprised of multiple business groups, sought a nationwide injunction blocking these provisions, arguing that the illustrative examples in the preamble to the new rule “specifically target and declare to be unlawfully retaliatory for the first time incident-based safety incentive and mandatory post-accident drug testing programs relied on by many employers to promote workplace safety.” In opposition, OSHA argued that the plaintiffs’ argument was not ripe because the language identified in the preamble does “not purport to bind [OSHA] or regulated parties, but rather speaks in hypothetical and conditional terms.”
In support of their injunction request, the plaintiffs argued that implementation of the new rule will diminish their ability to reduce workplace injuries, causing them irreparable harm. The court rejected this claim, finding that “[p]otential future injury based on unfounded fear and speculation . . . is insufficient to establish a substantial threat that irreparable harm will occur[.]” The court noted that the rule does not include a per se ban on post-accident drug testing or incident-based safety incentive programs, and questioned why existing programs could not be modified to comply with the rule.
Because the court denied the motion for a preliminary injunction, the anti-retaliation provisions go into effect December 1, 2016, several months after the original August 10, 2016 effective date. Even so, the litigation will continue, and it is possible that these provisions will ultimately be struck down or otherwise modified. With that said, employers should take this time to review post-accident drug testing policies for compliance with federal and state law. Post-accident drug testing may be legally required in some industries and in some states. If post-accident drug testing is not required by law, employers should consider whether their policy should be revised to apply only in situations where it is reasonably likely that substance use caused or contributed to the accident. Similarly, employers should review any safety incentive programs with an eye towards whether they tend to chill employee reporting of injuries.
The case is Texo ABC/AGC Inc. et al. v. Perez et al., case number 3:16-cv-01998, United States District Court for the Northern District of Texas. Click here for the November 28, 2016 decision.
