Executive Summary: A federal judge on November 28 refused to block implementation of the anti-retaliation provisions of OSHA’s recordkeeping and reporting rule scheduled to take effect December 1, 2016. The business groups challenging the rule (collectively TEXO) argued that it would unlawfully prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs. The court held that the rule’s challengers failed to show that irreparable harm would result or that the public interest would be disserved if the court did not grant an injunction. See TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28, 2016).

TEXO’s challenge focused on language in the preamble of the rule. First, that “it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness.” Other challenged language deals with drug testing. “[D]rug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for the employer to require drug testing.”

TEXO argued that many employers rely on such programs to promote workplace safety and that these restrictions would significantly limit their ability to reduce workplace injuries.

The court ruled: “Plaintiffs’ evidence is based almost entirely on unsupported beliefs, unfounded fears, and speculation regarding the general efficiency of mandatory post-accident drug testing and incident-based safety incentive programs, which are insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.” The court also rejected TEXO’s argument that irreparable harm would result because of an increased likelihood of inspections, citations, and penalties.

The court pointed out that the rule does not include a per se ban on post-accident drug testing or incident-based safety incentive programs.

Employers’ Bottom Line:

The court’s denial of the injunction is not a decision on whether the rule is lawful. The litigation will continue. However, the rule goes into effect December 1. During the period between December 1 and a ruling on the merits of the case, employers that have such post-accident drug testing and incident-based safety incentive programs potentially are subject to citations by OSHA. Employers will have to choose whether to modify their existing programs or wait until the court decides on the legality of the OSHA rule before making any changes.