On November 28, 2016, the United States District Court for the Northern District of Texas refused to preliminarily enjoin implementation of the part of OSHA’s new recordkeeping rule regarding post-accident drug testing and safety incentive programs. This part of the rule will now go into effect on December 1, 2016.
When OSHA finalized its new recordkeeping rule, Haynes and Boone published an alert describing the relevant new provisions, which primarily require certain employers to electronically submit information regarding workplace injuries and illnesses. This aspect of the rule becomes effective January 1, 2017 and was not challenged in the lawsuit seeking injunctive relief.
However, the rule also includes a number of other requirements regarding retaliation, post-accident drug testing, and safety incentive programs. Employer groups filed suit against OSHA and sought preliminary injunctive relief, requesting the court to enjoin these requirements of the rule from going into effect. The court has denied any such relief. Specifically, the court held that the employer groups failed to meet their burden to show a substantial threat of irreparable harm and public interest. The court’s analysis focused on the sufficiency of the type of evidence submitted to establish irreparable harm, including detailed analysis of the contents of witness declarations.
Although the suit will still proceed and the court could ultimately grant permanent injunctive relief, any such relief would be at least several months in the future. Moreover, while there has been discussion about the new administration repealing regulations, the recordkeeping rule was issued on a date that appears to be outside of the window for it to be eligible for Congress and the President to quickly repeal it under the Congressional Review Act. Instead, any changes would likely have to be through the lengthy process of formal notice-and-comment rulemaking. Thus, employers should review their post-accident drug testing policies and safety incentive programs to ensure compliance with the rule, as it will become effective December 1, 2016 and could be in place for some time in the future. Employers should also consider updating these policies and programs, as well as related internal guidance and training.
The requirements effective as of December 1, 2016, are summarized below:
- Providing Notice to Employees: Employers must include in their handbooks or other relevant policy documents a provision explaining that employees have a right to report any injury or illness without fear of retaliation for making the report.
- Changes to Specific Policies: Employers must include a policy for reporting injuries and illnesses that is “reasonable” and that does not deter or discourage an employee from reporting. OSHA has targeted harsh disciplinary policies and the following two programs as potentially deterring employees from reporting injuries and illnesses:
- Post-Accident Drug and Alcohol Testing Policies—These policies often require employees to submit to a drug/alcohol test after an accident, regardless of the nature of the incident. According to OSHA, such a policy may deter employees from reporting an accident or injury due to the inconvenience, burden or invasion of privacy associated with the test. The central inquiry is whether the employer reasonably believes that drug/alcohol use by the reporting employee could have contributed to the injury or illness. If an injury or illness is unlikely to have been caused by employee drug/alcohol use, requiring the employee to submit to a test may deter reporting. For instance, the agency believes that it is unreasonable to require employees to submit to a drug test after a repetitive back strain or a bug bite. Likewise, the agency believes that drug testing methods that do not identify impairment related to the accident but only test drug use at some time in the recent past may deter reporting. Other considerations are whether other employees involved in the incident are also tested, and whether the employer has a heightened interest in drug/alcohol use due to the hazardousness of the work performed when the incident occurred.
- Safety Incentive Programs—Employers often reward employees for positive outcomes such as low injury or illness ratings. OSHA believes that such policies based on lagging indicators (i.e., recordable injuries) deter injury and illness reporting and may be unlawful. Programs that provide a financial incentive, such as a monetary bonus, are particularly scrutinized by OSHA. The agency maintains that a safety incentive program based on leading indicators, such as a program that incentivizes compliance with safety rules, completion of voluntary additional safety training or participation in voluntary safety committees or meetings, would avoid deterring the reporting of injuries.