U.S. District Court Judge Sam Lindsay of the Northern District of Texas Dallas Division has ruled against plaintiffs TEXO ABC/AGC Inc., Associated Builders and Contractors Inc., the National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, Great American Insurance Co., Atlantic Precast Concrete Inc., Owen Steel Co. and Oxford Property Management LLC in a case requesting a preliminary injunction challenging OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” final rule and specifically, two aspects of the rule: post-injury drug testing and incentive programs. The rule’s anti-retaliation provisions will go into effect on Dec. 1, with the reporting requirements taking effect Jan. 1.  

Lindsay, ruling in the case of TEXO ABC/AGC Inc. et al versus Thomas E. Perez, Secretary of Labor, United States Department of Labor, et al, reminded the plaintiffs that “…Courts must keep in mind that a preliminary injunction is a ‘drastic remedy’ that ‘should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” He further stated that, “Plaintiffs have failed to carry their burden in demonstrating that there is substantial threat that irreparable harm will result or that the public interest will not be disserved if a preliminary injunction is granted to enjoin implementation of the rule pending resolution of this action.”

In an exclusive interview with EHS Today, attorney Edwin Foulke, a former Assistant Secretary of Labor for OSHA, noted that Lindsay’s decision “wasn’t unprecedented.”

“It’s hard for any party to show irreparable harm when the standard hasn’t been enforced yet,” says Foulke. “It’s not impossible, but it’s a very high burden of proof.”

Drug Testing Injured Employees

According to OSHA’s interpretation of the revised recordkeeping rule, “drug-testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” As an example, OSHA points out that it would “not be reasonable” to drug test an employee who reports an allergic reaction to a bee sting. More controversial was OSHA’s contention that it would not be reasonable to drug test an employee reporting a repetitive strain injury or an injury caused by a lack of machine guarding or a machine or tool malfunction.

“An ergonomic injury could be the result of repetitive motion or it could be the result of a sudden incident and improper lifting, which could be related to impairment,” says Foulke.

The rule, he adds, is very narrow in scope. It only looks at post-injury drug testing. It does not impact pre-employment drug testing and it does not impact random drug testing. “If you have an employee who drives for work and gets into an accident but who is not injured, you can still drug test for that,” says Foulke.

OSHA says that employers “need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

Foulke recommends that employers examine their policies related to automatic post-accident drug testing when there’s an injury. “OSHA’s asking you as an employer to have a business reason for doing that,” says Foulke.

He suggests that employers include language indicating that post-accident testing will be conducted when there’s an injury if there is a “reasonable suspicion” that the injury could be related to drug or alcohol use. He also suggests that employers provide training for supervisors and managers in recognizing the signs of impairment from drugs or alcohol.

Another no-no according to Foulke: Requiring injuries to be reported "immediately."

“Ninety percent of companies require the immediate reporting of injuries. I suggest they take the word ‘immediate’ out of their policies and replace it with ‘as soon as reasonably possible,’” says Foulke.

A recent case illustrates Foulke’s point about changing the language in reporting policies. In July 2016, OSHA settled a case with U.S. Steel in which the employer in 2014 disciplined two employees for violating the company’s immediate reporting policy for injuries. The purpose of the policy is to ensure injuries are reported in a timely manner. The employees claimed they were not aware of the immediate severity of their injuries, which is why they didn’t report them when they occurred. OSHA claimed the policy punished the workers for reporting injuries, a violation of whistleblower statutes.

“Changing the language creates a safe harbor for employers,” says Foulke.

Incentive Programs

The preamble to the recordkeeping rule states: “It is a violation… for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program. Therefore, it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness.”

This “adverse action” includes disqualifying the employee (or, potentially, that employee’s work team or co-workers) for a monetary bonus “or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness,” according to the agency.

Foulke suggests that employers “might want to get away” from incentive programs that offer rewards to employees for reduced injury and illnesses. Instead, employers can focus rewards on things like near-miss reporting and participation in workplace safety initiatives as well as other aspects of workplace safety that are not related to the number or frequency of injuries and illnesses.

Seeming to speak specifically to incentive-based programs, Judge Lindsay noted, “Plaintiffs contend that eliminating these programs could have a negative impact on employee relations and good will because employees have to see the safety programs as a benefit to their employment.”

Meloni McDaniel, present and CEO of TEXO, told the court that 95 percent of TEXO’s members have mandatory post-accident drug testing programs and 81 percent have safety incentive programs that condition benefits on reduced workplace injuries. The judge noted that according to McDaniel, “89 percent of survey respondents ‘believe’ that these programs help their companies reduce workplace injuries and 91 percent of survey respondents believe that workplace injuries will increase and their workplaces will be less safe if they are forced to eliminate these programs.”

She also told the judge that “good will among employees will be lost” if the programs are eliminated, “and that all the foregoing constitutes irreparable harm.”

ABC Vice President Greg Sizemore told the court that 82 percent of ABC’s members have mandatory post-accident drug testing; 32 percent have safety incentive programs that are based on reduction of injuries; and 92 percent believe the programs reduce workplace injuries.

Lindsey was not moved by the plaintiffs’ contentions that workplaces will be less safe if the rule is implemented.

“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,” said Lindsay.

He went on to state: “The rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work-related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.

“The rule does not include a per se ban on post-accident drug testing or incident-based safety incentive programs, and it is not entirely clear whether any of the programs currently implemented by plaintiffs would violate the rule.”