The U.S. District Court for the Northern District of Texas has ruled that OSHA may begin enforcing the anti-retaliation provisions of its Final Rule to Improve Tracking of Workplace Injuries and Illnesses starting December 1, 2016, even though a lawsuit challenging the rule is still pending. In their motion for an emergency injunction against enforcement — TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D.Tex) — the industry groups bringing the lawsuit argued that the new requirements would actually put workers at greater risk of workplace injuries. However, on Monday, the district court ruled that OSHA’s enforcement of the new anti-retaliation provisions could proceed, starting tomorrow. As presiding District Judge Sam Lindsay stated in his decision, “[the] Plaintiffs have not met their burden of establishing that they are likely to suffer irreparable harm in the absence of a preliminary injunction.”
What Changes Under the New Rule?
The anti-retaliation provisions of OSHA’s new Final Rule allow the agency to cite employers for retaliating against an employee, even if that employee does not file a formal complaint. The Final Rule also clarifies that employers may not implement any program or policy that has the potential to discourage employees from reporting workplace incidents. For example, the rule prohibits workplace safety incentive programs that provide rewards (financial or otherwise) which are likely to encourage employees to underreport workplace incidents. It also prohibits automatic drug testing after an incident when that testing functions as a retaliation and/or deters reporting.
Proceeding with Enforcement
In his decision, Judge Lindsay was stern in his criticism of the industry groups’ argument that the new requirements would make workplaces less safe. The judge noted that the preponderance of evidence submitted for this was based on surveys asking workers if they believed incentive-based safety programs made them safer. The judge wrote: “There is no factual basis in either declaration to support [the Plaintiffs’] conclusory statements regarding the unsupported beliefs of survey respondents. 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.”
However, even though the judge refused to block enforcement of the rule as scheduled, he was careful to leave the door open regarding the ultimate fate of the lawsuit. His ruling concludes: “That the court has denied injunctive relief requested by Plaintiffs is not a comment or indication as to whether Defendants will ultimately prevail on the merits. This determination is left for another day.”
Also important to keep in mind is that industry observers have questioned whether the incoming administration will prioritize enforcement of these provisions of the Final Rule — regardless of the court’s final decision concerning their legality.
Complying with the Requirements
For the immediate future, EHS professionals should expect OSHA to begin enforcing all provisions of the new Final Rule starting tomorrow. Reviewing the October 19, 2016 enforcement memo regarding the Final Rule is a great way to prepare yourself and your workplace. Tools from VelocityEHS can also help! Our mobile-enabled Incident Management solution allows you to more effectively manage workplace incidents across your organization, and provides employers with an engaging and easy-to-use incident reporting system that employees can access, right from their mobile device. Our solutions help you to schedule and manage workplace safety meetings, track participation in your safety incentive programs, coordinate and deliver both in-person and online safety training content, and document completion of training requirements to verify compliance with training standards. In addition, our Audit & Inspection solutions can help employers audit their drug testing policies and evaluate safety incentive programs to ensure alignment with the provisions of the final rule. You can even customize and configure our solutions to specifically track drug testing-qualified incidents as needed. For more information on our cloud EHS software solutions, visit our website or call us at 1.888.362.2007.