A Texas federal court has refused to enjoin OSHA’s new rule regarding workplace safety and injury reporting, which went into effect on December 1, 2016. Similar to employers’ recent successful challenge of the DOL’s overtime rule, employers challenged the legality of the anti-retaliation rule, which includes controversial guidance regarding safety incentive programs and post-incident drug testing. Spilman recently discussed the anti-retaliation rule in a webinar. While the legal challenge to the anti-retaliation rule is not over, employers immediately should review their workplace safety and injury reporting policies to avoid employee or union complaints and possible OSHA inspections.
 
The anti-retaliation rule has two goals: (1) discourage retaliation and (2) encourage workplace illness and injury reporting. To accomplish these goals, the anti-retaliation rule explicitly prohibits employers from retaliating against employees for reporting a workplace illness or injury and requires employers to establish a reasonable illness and injury reporting procedure (presumably, in writing). The rule also includes comments from OSHA that indicate post-incident drug testing policies and safety incentive programs may violate the rule. For example, a post-incident drug testing policy may be unreasonable if the testing discourages employees from reporting injuries. And, safety incentive programs could be retaliatory if an employee were disqualified from receiving the incentive by reporting an illness or injury. 
 
Importantly, although employers do not need to end their drug testing and safety incentive programs, they do no need to scrutinize whether such programs result in retaliation or discourage workplace illness and injury reporting. The court explained that the anti-retaliation rule and OSHA’s commentary do not “include a per se ban on post-accident drug testing or incident-based safety incentive programs.” Instead, OSHA’s commentary identified post-incident drug testing policies and safety incentive programs as policies it could question under the anti-retaliation rule. OSHA would have to determine whether such programs violate the anti-retaliation rules on a case-by-case basis.   
 
The court’s decision is only a preliminary roadblock for employers challenging the anti-retaliation rule. The court could still determine that the anti-retaliation rule is illegal. Moreover, the decision does not mean that, as of December 1, 2016, OSHA randomly can inspect an employer to determine whether its drug-testing or safety incentive programs retaliate against an employee for reporting his or her injury or illness. OSHA would need to receive a complaint regarding an adverse employment action related to a post-incident drug test or safety incentive program before it could begin such an inspection. With this in mind, employers should review their workplace safety and injury policies to:

1. ensure they include a written illness and injury reporting procedure that does not discourage employees from reporting workplace illnesses and injuries,
2. ensure they include a statement explaining that supervisors will not retaliate against employees for reporting a workplace illness or injury, and
3. scrutinize any safety-incentive programs and blanket post-accident drug testing and determine whether they may result in retaliation or discourage employees from reporting workplace illnesses and injuries.