Court Refuses To Block OSHA’s New Anti-Retaliation Rule That Restricts Post-Accident Drug Testing And Safety Incentive Programs

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

A federal judge in Dallas, Texas, decided Monday that the Occupational Safety and Health Administration could begin enforcing the anti-retaliation provisions of its new “Reasonable Reporting Procedure” rule starting tomorrow (Thursday, December 1). A lawsuit challenging the rule, filed by a number of industry groups, will continue, but the court decided not to block the agency from enforcing the rule while the case proceeds through the judicial system.

The case is TEXO ABC/AGC, Inc. v. Perez.

To get a court to issue a preliminary injunction while a lawsuit is pending, the plaintiff must show, among other things, that it would suffer “irreparable harm” if the injunction were not granted. The court found that the plaintiffs in this case had not made that showing. Instead, the court agreed with the U.S. Department of Labor that the new regulations “simply incorporate 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 emphasized that the regulations, which restrict post-accident drug testing and safety incentive programs that could discourage employees from reporting injuries or illnesses, did not amount to a per se ban on such programs. For that reason, among others, the court concluded that the plaintiffs failed to meet their burden of proving that their efforts to maintain a safe and healthful workplace would be irreparably harmed absent an injunction.

The new rule was originally scheduled to go into effect on August 10 but was delayed until November 1 to allow OSHA to provide guidance on the rule. The rule was delayed one more time – until tomorrow -- to allow the court to review and decide on the preliminary injunction. Meanwhile, OSHA has issued guidance that explains how the Agency interprets the new regulation, particularly the restrictions on post-accident drug testing and incident-based safety incentive programs. These Example Scenarios and an internal memorandum to the Regional Administrators are consistent with guidance we offered this past summer.

It remains to be seen, however, how aggressively OSHA under the Trump Administration will scrutinize employers’ drug testing and safety incentive programs under the new anti-retaliation rule, or whether the court will ultimately strike down the rule.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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