Federal Court Denies Attempt To Enjoin New OSHA Reporting Rule
OSHA’s new rule on electronic reporting requirements (the “Rule”) takes effect on January 1, 2017 (for a summary of the Rule, check out our previous post). In addition to imposing requirements for electronic submission of certain injury and illness reports, the Rule includes three anti-retaliation measures. A group of trade associations, workers compensation providers, and other employers (collectively “Employer Group”) filed suit in the U.S. District Court for the Northern District of Texas earlier this year seeking to enjoin the Rule’s anti-retaliation measures. That court, however, denied the Employer Group’s request last week based on its determination that the Employer Group had not demonstrated that the Rule’s implementation would cause irreparable harm.
The Employer Group specifically sought to enjoin the anti-retaliation measures and have them declared unlawful “to the extent that they prohibit or otherwise limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.” The Employer Group conceded that employers have always had an obligation to not retaliate against employees for reporting workplace injuries but took issue with certain of OSHA’s comments indicating that safety incentive programs and mandatory drug testing programs could be viewed as retaliatory.
First, the Employer Group challenged an OSHA comment in the Rule’s preamble stating that employers may not take adverse actions after an injury is reported “whether or not such adverse action was part of an incentive program . . . including denying a benefit . . . [or] disqualifying the employee for a monetary bonus. . . .” For example, a safety incentive program that causes employees to be denied a benefit based on the reporting of an injury will be viewed as problematic.
Second, the Employer Group challenged preamble language on post-incident drug testing. The Rule’s preamble states that such testing should be limited “to situations in which employee drug use is likely to have contributed to the incident . . . [and that] it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.” Based on these issues, the Employer Group asserted that implementation of the Rule would cause irreparable harm because of a forced choice between eliminating safety incentive programs and mandatory post-incident drug testing or incurring OSHA penalties.
The court, however, concluded that the Employer Group failed to meet its burden because it could not show real, substantial, and immediate—as opposed to speculative—threats of harm. The court agreed with OSHA that the Employer Group’s supporting evidence was either lacking in sufficient detail or otherwise undermined by various concessions made by the Employer Group throughout the lawsuit. On supporting evidence, for example, the court found unpersuasive the Employer Group’s surveys showing that nearly 90% of the trade associations’ members believed safety incentive programs reduced workplace injuries and that 93.5% of their members believed workplace incidents would increase if the safety incentive programs were eliminated. The court noted that the total number of respondents to the survey was not revealed and the Court called the survey results “conclusory statements” based on “unsupported beliefs of survey respondents.”
The court also used many of the Employer Group’s own admissions in support of its decision to deny the motion for preliminary injunction. The executive vice president for one company’s strategic compensation acknowledged in a supporting declaration that “not all safety incentive programs are created equal.” The court viewed this evidence as undermining the Employer Group’s request for a nationwide injunction because safety incentive programs presumably were not as effective or necessary as advertised by the Employer Group. Further, another executive acknowledged that a safety incentive program must “be implemented in combination with other changes” including “culture change,” and proper training and monitoring of employees. The court understood this to mean that a companies’ decrease in workplace injuries may be due to any number of things, rather than any safety incentive program alone.
The court held that the Employer Group’s “belief that elimination or modification of mandatory post-accident drug testing and incident-based safety incentive programs will significantly and detrimentally affect workplace safety” overlooked many other measures they themselves acknowledged as playing a strong role in workplace safety. The Employer Group’s inability to pinpoint direct causation between safety incentive programs, mandatory post-incident drug testing, and a decrease in workplace injuries, combined with a series of self-contradictory admissions resulted in the court’s decision to deny the motion for injunction.
The case is No. 3:16-cv-1998 in the U.S. District Court for the Northern District of Texas.
