Employer Groups Sue To Block OSHA’s Drug Testing Provisions

Constangy, Brooks, Smith & Prophete, LLP

A number of employers and employer groups — including the National Association of Manufacturers and Associated Builders and Contractors, Inc. — filed suit last week in a federal court in Texas seeking to block parts of the new OSHA rule set to take effect in August.

The lawsuit contends that the parts of the rule dealing with discrimination and retaliation — and, most notably, the part limiting post-accident drug testing — exceeds the Agency’s authority, interferes with state workers’ compensation laws, and is arbitrary and capricious.

The plaintiffs also say that OSHA did not comply with procedures it is required to follow before issuing a new rule, and did not conduct a required regulatory analysis.

I talked about the lawsuit this morning with Bill Principe, co-chair of our firm’s Workplace Safety Practice Group. “The parties challenging the new requirements have raised some compelling arguments,” he said. “It will be interesting to see whether this leads to a stay in the August 10 enforcement date or compromise by OSHA.”

Bill also noted that the lawsuit does not challenge the OSHA rule’s requirement for electronic submission of information about workplace injuries and illnesses, but only the rule’s discrimination and retaliation provisions.

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Constangy, Brooks, Smith & Prophete, LLP

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