On November 28, 2016, the United States District Court for the Northern District of Texas denied industry employers’ efforts to enjoin OSHA from beginning to enforce portions of OSHA’s May 2016 final rule that purports to prohibit, among other things: 1) disciplinary action against employees for not immediately reporting work-related injuries or illnesses; and 2) blanket, automatic post-accident/injury drug and alcohol testing.
In May 2016, OSHA published a new record keeping rule that included, among other provisions, an express anti-retaliation prohibition. Commentary to OSHA’s final rule suggested that employer policies requiring immediate reporting of injuries could have a chilling effect on employees reporting slow-developing or chronic injuries or illnesses. According to OSHA, to be reasonable, the policies must allow for reporting within a reasonable time after the employee realizes that he or she has suffered a work-related injury instead of requiring reporting immediately following the occurrence of an injury. The Commentary also implied that post-incident drug or alcohol testing under a blanket policy could constitute prohibited retaliation. Instead, OSHA instructed employers to “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.”
The National Association of Manufacturers and similar industry groups and employers filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was published, challenging the rule’s anti-retaliation provisions and seeking a preliminary injunction to prevent OSHA from beginning to enforce the provisions until the Court decided their underlying legal challenge. Although the original effective date for the rule had been August 10, 2016, OSHA voluntarily postponed its enforcement of the anti-retaliation provisions until December 1, 2016 to allow the Court to rule on the request for preliminary injunctive relief.
The Court has now denied the employers’ request for injunctive relief on narrow grounds, holding that the employers could not demonstrate immediate, irreparable harm if enforcement of the anti-retaliation rule became effective. The Court’s decision was limited to the element of irreparable harm, and did not reach the underlying merits of the claim that the new rule creates an unlawful enforcement scheme under OSHA. In short, the Court has allowed OSHA to implement the new rule without deciding whether the rule is valid.
The Texas District Court’s ruling means that OSHA’s regulations are now in effect, allowing OSHA to investigate complaints by employees who have suffered retaliation under blanket drug and alcohol testing policies or who have suffered adverse or disciplinary action for “late” injury reporting. In addition to ongoing litigation, additional complications may result from additional/different regulatory changes made by the incoming new presidential administration early next year. For now, however, OSHA’s regulations are fully in effect. They have not been “approved,” however, so employers cited under them are able to challenge the citation based upon the rules’ invalidity. Employers are urged to consult with counsel to determine whether immediate changes to their accident reporting and drug testing policies and programs are needed, and, of course, whenever they receive a citation under these rules.