By Benjamin D. Briggs, Brent I. Clark, James L. Curtis, Mark A. Lies, II, Patrick D. Joyce, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: The Federal District Court has denied industry’s request to enjoin OSHA’s new rules on mandatory post-accident drug screenings and safety incentive programs, workplace retaliation, and requiring employers to post OSHA logs electronically.

We had previously blogged about the Occupational Safety and Health Administration’s new rule on drug-testing, retaliation claims, and accident reporting. In response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Despite the pending lawsuit, OSHA previously issued an interpretative guidance on the new rule.

The Court just issued its decision denying the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction. Slip Op. 7. “Moreover, the court agrees with Defendants that the Rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work–related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.”

The Court’s ruling is not on the merits of the case but rather, is limited to the request for a preliminary injunction. However, it is unclear whether the Plaintiffs will continue to pursue this litigation given the Court’s refusal to preliminarily enjoin the rule.

The new rule will take effect on December 1, 2016.

The Substance of the New Rule as Enacted

The new rules are complex. First, a new anti-discrimination and anti-retaliation rule will apply to all employers. This rule requires all employers to inform employees about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses. OSHA also interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. Additionally, the new rule prohibits incentive programs that are solely based on providing employees with benefits for not having workplace injuries. OSHA’s belief is that such policies chill employees from reporting legitimate workplace injuries in order to receive the benefit. OSHA’s new rule also allows compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The new rule also requires that large employers and employees in specific high hazard industries file their injury and illness information electronically with OSHA. OSHA intends to release this employer injury and illness information publicly on its website, believing that this will “shame” employers into improving workplace safety and health. OSHA believes that the electronic data submission requirement would also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The electronic filing portions of the rule begin to take effect in 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.