Dec 01, 2016

Not every injunction is granted in Texas: No preliminary nationwide ban on anti-retaliation provisions of new OSHA workplace injury reporting rule

Although business groups have had considerable success in the federal district courts in Texas seeking to enjoin actions of the U.S. Department of Labor, these groups were dealt a blow this week when U.S. District Court Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas (a Clinton appointee) denied their request to preliminarily enjoin several anti-retaliation provisions in the Rule to Improve Tracking of Workplace Injuries and Illnesses (Rule) published by the Occupational Safety and Health Administration (OSHA) in May. Here is the Memorandum Opinion and Order entered on Nov. 28, 2016. These anti-retaliation provisions had been stayed during the briefing of the court proceeding but now will be enforced starting on Dec. 1. 

The trade associations, workers compensation insurance provider and several companies that purchased workers compensation policies from the insurer filed suit in July and asked Judge Lindsay to block the enforcement of certain OSHA regulations that would bar mandatory post-accident drug testing and certain incident based safety incentive programs mentioned by OSHA in the preamble to the Rule published in the Federal Register. Go to page 29,673 for the commentary on drug testing and incentive safety programs.

What was the challenge?

The business groups asked the court to find that they would be irreparably harmed and that worker safety would be negatively impacted by the enforcement of the Rule. In their view, mandatory post-accident drug testing and certain incident-based safety incentive programs increased worker safety and did not serve as a deterrent to employee reporting of work-related injuries or illnesses. OSHA argued that anti-retaliation restrictions already were required. Considering the arguments, the court rejected the argument of the business groups. It found they had not established that they would be irreparably harmed if it did not grant the preliminary injunction and expressly noted that much of their evidence was merely speculation.

Currently, OSHA investigates employee complaints that they experienced retaliation upon reporting work-related injuries or illnesses. The business groups speculated that OSHA would increase its investigation and surveillance under the following requirements based on examples it presented in the preamble to the Rule: (1) the requirement that employer procedures for employee reporting of workplace injuries or illnesses be reasonable; (2) the requirement that employers inform employees of their right to report work-related injuries free of retaliation; and (3) the requirement that employers do not retaliate. 29 C.F.R. §1904.35(b) (i), (iii), (IV).

Questioned mandatory post-accident drug testing

OSHA was concerned that mandatory post-accident drug testing was too broad. It wanted employers to limit post-accident drug testing to situations where an employee’s drug use might have led to or contributed to the accident. So, if an employee was injured when a book fell on his head, post-accident drug testing might not be appropriate; but if an employee stumbled into a bookcase and the books fell on to his head, post-accident drug testing might be warranted. Accordingly, OSHA directed that post-accident drug testing should take place only when there was a reasonable probability that drug use by the reporting employee was a contributing factor to the reported injury or illness.

Questioned incentive safety programs

OSHA was concerned that employees might not report work-related injuries or illnesses where their reporting could disqualify them or other employees from receiving a monetary “safety” bonus. For instance, OSHA called into question the use of certain incident-based incentive safety programs, like rewarding the employee for “x” number of accident free days, arguing that they could deter employees from reporting work-related injuries.

What does it mean for employers?

Because the nationwide preliminary injunction was not granted, OSHA’s Rule proscribing a more targeted use of post-accident drug testing and incident-based safety incentive programs will be enforced starting on Dec. 1, 2016. Employers are advised to revise their policies to eliminate mandatory post-accident drug testing and use such testing only when they believe there is a reasonable probability that drug use, including alcohol, might have contributed to the accident. In addition, employers should consider not offering benefits to employees that are conditioned on the absence of incidents or workplace injury during a specified period of time.

If you would like more information on the impact of the denial of the injunction, how to update your policies or other employment matters, please contact one of Chuhak & Tecson’s employment attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by:Jeralyn H. Baran, Principal