OSHA Can Enforce Drug Testing, Incentive Limits, Judge Says

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By Bruce Rolfsen

Nov. 28 — OSHA can begin enforcing its rule restricting safety incentives and drug testing programs, a federal judge decided Nov. 28 ( TEXO ABC/AGC v. Perez , N.D. Tex., No. 16-1998, 11/28/16 ).

In a 17-page order Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas said that the industry organizations and employers seeking a temporary injunction against enforcing the rule had failed to show there would be irreparable harm to them if the Occupational Safety and Health Administration moved ahead with enforcing the rule.

OSHA has set Dec. 1 as its enforcement start date.

The challenged standard, released May 12 (81 Fed. Reg. 29,624), requires about 466,000 worksites with more than 20 employees to electronically submit annual injury and illness log data to OSHA, enabling OSHA to post on its public website summaries of each establishment’s records. The electronic submission requirement starts taking effect in 2017 and will be phased in through 2019.

“Potential future injury based on unfounded fear and speculation of this sort is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted,” Lindsay said about injunction request.

Order No Indication of Permanent Injunction

Lindsay said his order isn’t an indication about whether OSHA will prevail against the industry request for a permanent injunction.

“This determination is left for another day,” Lindsay wrote.

Among those seeking the injunction were the National Association of Manufacturers, the Great American Insurance Company and construction organizations.

The standard (RIN:1218-AC49) also says workplaces “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure isn’t reasonable if it “would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

To implement the reporting procedure, OSHA said safety incentive programs rewarding workers and supervisors for low injury and illness rates may violate the standard because cash and other benefits could convince workers to not report cases.

In addition, OSHA said drug testing programs requiring any worker reporting an injury to be tested could violate the standard because the threat of testing would discourage reporting.

The Manufacturers’ Center for Legal Action, Keller & Heckman LLP, Littler Mendelson PC and the American Fuel & Petrochemical Manufacturers’ general counsel office represent the plaintiffs.

Spencer Amdur of the Department of Justice in Washington, D.C., represents OSHA and the Department of Labor.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The judge’s order is available at http://src.bna.com/kkV

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