Safety and OSHA News

Court: OSHA can enforce its drug testing & incentive prohibitions

A federal court has denied a request to temporarily stop part of OSHA’s updated recordkeeping rule that would prohibit companies from using certain types of drug testing and safety incentives.

Several trade associations, a workers’ compensation insurance provider and companies that purchased insurance from the provider asked a federal court in Texas to put a temporary halt to parts of OSHA’s rule, Improve Tracking Workplace Injuries and Illnesses. They claim the rule is against the law because it would prohibit incident-based safety incentive programs and mandatory post-injury drug testing.

The associations and employers challenged three requirements added to the rule on recording and reporting occupational injuries:

  1. employer procedures for employee reporting of workplace injury-reporting be reasonable
  2. employers must inform employees of their right to report work-related injuries free from retaliation, and
  3. employers should not retaliate against employees for reporting work-related injuries.

The associations and employers don’t dispute that employers were already obligated not to retaliate against employees for reporting work-related injuries.

But they object to two examples included in the updated rule:

  1. “It is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus,” and
  2. “Drug testing policies should 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 associations and employers believe that these types of drug testing and incentives significantly reduce the overall number of workplace injuries. They claim employers would be “irreparably harmed” because their ability to reduce injuries would be limited significantly.

OSHA countered that its rule doesn’t completely ban safety incentives or post-incident drug testing. The agency says companies can offer incentives that don’t punish injury reporting, drug test outside of situations involving injury reporting and drug test after injuries that might have been caused by drug use.

The federal court hearing the case found that the associations and companies didn’t meet their burden of showing that they would face irreparable harm from the rule. Their argument was “based on unfounded fear and speculation,” according to the court.

The court agreed with OSHA 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 also rejected the argument that the rule would increase the likelihood of inspections, citations and severe penalties. Although the associations and companies made that claim, they didn’t explain why they expected that to be the case.

Even though the judge denied the request for the preliminary injunction, he’s yet to make a final ruling on the case, and he cautions, “This determination is left for another day.”

But for now, companies have to make sure their safety incentives and post-injury drug testing don’t discourage employees from reporting work-related injuries. This part of the rule takes effect Dec. 1, 2016.

(TEXO ABC/AGC, Inc., et al v. Thomas E. Perez, Secretary of Labor, U.S. Dist. Crt. N.D. Texas, No. 3:16-CV-1998-L, 11/28/16)

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