Rely on Occupational Safety & Health ReporterSM for full news coverage and documentation of federal and state workplace safety and health programs, standards, legislation,...
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.
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 email@example.com
The judge’s order is available at http://src.bna.com/kkV
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)