Professional Service Agreement

Federal Judge Denies Preliminary Injunction on OSHA's New Anti-Retaliation Rule

December 04, 2016

A federal court in Texas has denied a motion filed by various trade associations to enjoin a Final Rule published by the Occupational Safety and Health Administration (OSHA).

The Court held the assertions that post-accident drug testing and safety incentive programs dramatically reduce workplace injuries or that implementing the Final Rule would increase injuries, were unsupported and speculative. With the request for injunctive relief denied, the Rule took effect on December 1 as scheduled. The Final Rule requires employers to inform employees of their right to report work-related injuries free from retaliation and to establish reasonable procedures for employees to report injuries. The preamble to the Final Rule states that many employer drug testing programs and safety incentive programs discourage the reporting of injuries and are, therefore, in violation of the Rule. OSHA states in the preamble that unless the injury was a result of an impairment, requiring post-injury drug testing is unreasonable under the Rule. A blanket policy of post-accident drug testing is presumed by OSHA to be retaliatory and to discourage reporting. The preamble reiterates the fact that the Occupational Safety and Health Act (OSH Act) expressly prohibits OSHA from superseding or affecting worker compensation laws. Many worker compensation laws have "drug-free workplace" programs, or similarly allow reduction in awards where drug use is established. While OSHA was very vague on this subject in the preamble, drug testing programs done in furtherance of workers’ compensation laws should not be considered by OSHA to be retaliatory.