On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an accident are improper. Instead, OSHA says that to be proper post-accident drug testing must be limited to circumstances where the facts at least suggest the possibility that alcohol or drug abuse played a part.

These two provisions had employers scrambling to review incentive and drug testing programs, and evaluating whether to make changes. Then a number of business interest groups filed a lawsuit in federal court in Texas seeking an injunction to stop these aspects of the rule form being enforced.

As we noted in our October 27 article, OSHA agreed to delay enforcement until Dec. 1, 2016, to allow the Court time to make a ruling on the request for an injunction. In his decision Monday, the Judge concluded that there has been no showing that enforcement of the rules would cause irreparable harm to business interests if they become enforceable now. The fact that the judge refused to issue an injunction at this time does not mean the case is over. If the case is not settled or dropped, the Court will hold a trial and consider the arguments on all of the merits. That could result in the rule being approved by the Court or disapproved at some later date.

The short-term effect of the Judge’s decision is that, as of Dec. 1, 2016, OSHA is free to enforce all aspects of the new rule. That means that in OSHA inspections, companies likely will be asked to produce any drug testing programs and incentive programs they have in place. If those programs run afoul of the rule, OSHA will likely issue citations and insist on policy modifications. Companies should review incentive programs and consider eliminating any aspect which conditions rewards on the rate of reported injuries. Companies should also review drug testing programs and consider revisions so that drug and alcohol testing does not occur automatically in every post-accident circumstance, but only in those where the facts suggest the possibility that drugs or alcohol were involved.

We will continue to watch this issue and report on future developments.