Seyfarth Synopsis: A lawsuit has been filed against OSHA challenging its May 2016 retaliation and recordkeeping rule.

We had blogged recently about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). In response to the Rule, the National Association of Manufacturers (NAM) and others have brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

The NAM is joined by national, state, and local business groups and others in challenging the Rule. The NAM Senior Vice President and General Counsel Linda Kelly issued the following statement announcing the challenge to the Rule:

The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.

Furthermore, releasing this [injury] information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy. Manufacturers take pride in creating safe workplaces and are supportive of regulations that increase transparency, but this regulation does neither, and we look forward to fighting this in the courts.”

The lawsuit seeks a declaratory judgment finding that the Rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs. The plaintiffs allege that the challenged provisions are unlawful and must be vacated because they exceed OSHA’s statutory authority, and because the “underlying findings and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”