A Texas federal court has refused to enjoin OSHA's new rule regarding workplace safety and injury reporting. OSHA amended 29 C.F.R. 1904.35 during May 2016 to explicitly prohibit retaliation against employees for reporting workplace illness/injury and to require employers to establish a reasonable illness/injury reporting procedure. In the document amending the rule, OSHA asserted that workplace safety incentive programs could be retaliatory if an employee were disqualified from receiving the incentive by reporting an illness or injury. OSHA further asserted that post-incident drug testing may be considered unreasonable in that such testing could discourage employees from reporting injuries.
Several employers and trade associations, including TEXO ABC/AGC, sued OSHA in Texas federal district court to block enforcement of the new rule. The employers and trade associations argued that the new rule's effect on drug testing and safety incentive programs would hamper their ability to investigate workplace incidents and result in less safe workplaces. The judge found that the employers and industry groups had not shown sufficient evidence of the potential for irreparable injury to warrant a preliminary injunction. But the judge noted that his ruling did not indicate the case's ultimate outcome. The judge may still nullify the new rule after a hearing on the merits.
OSHA originally intended to begin enforcement of the new rule during August 2016, but pushed that date back pending the court's ruling on the preliminary injunction. In light of the judge's ruling, OSHA began enforcing the new rule on December 1. Employers should take a close look at any safety incentive programs and/or post-incident drug testing requirements they have to make sure they do not contravene OSHA's new rule.