Last Monday, U.S. District Court for the Northern District of Texas Judge Sam Lindsay ruled that a coalition of business groups and companies did not prove that it would suffer irreparable harm in the absence of a nationwide preliminary injunction against OSHA’s anti retaliation provisions. The Judge denied the request for a preliminary injunction, allowing enforcement of OSHA’s anti-retaliation provisions of the new electronic recordkeeping rule to go into effect on December 1, 2016.
The provision in question arises from OSHA’s new illness and injury tracking rule released on May 27, 2016. The new anti-retaliation rule requires employers to:
- Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. OSHA has indicated a procedure is not reasonable if it discourages or deters a “reasonable employee” from accurately reporting a workplace injury or illness;
- Inform each employee of the procedure for reporting work related injuries and illnesses; and
- Inform each employee that:
- Employees have the right to report work related injuries and illnesses; and
- Employers are prohibited from discharging or in any manner discriminating against employees for reporting work related injuries or illnesses.
Various business groups filed a motion for a preliminary injunction arguing the new rule would cause irreparable harm. Judge Lindsay opined “potential future injury based on unfounded fear and speculation of this sort is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.” He further opined “The declarations submitted by Plaintiffs are similarly devoid of facts to support the belief that mandatory post-accident drug testing is more effective than other forms of drug testing or why the elimination or modification of post-accident drug testing would necessarily result in increased injuries if other drug testing remained in place.”
The Occupational Safety and Health Act already prohibits discrimination by an employer against an employee for reporting injuries and illnesses under Section 11(C). However, OSHA previously was not able to independently take action under Section 11(C) until an employee filed a complaint within 30 days of the alleged act of retaliation. However, now under this new rule, OSHA will be able to cite and also issue penalties to any employer for retaliation even if employees do not file a complaint. As such, employers should consider reviewing handbooks and drug testing policies as well as workplace safety incentive programs to ensure compliance with this new anti-retaliation rule. If you have questions regarding the new rule or regarding your handbook, please contact a member of our Labor & Employment practice.