This afternoon, a federal judge in Texas denied a request from employers and business groups for a preliminary injunction to halt the enactment of the anti retaliatory provision in the OSHA recordkeeping rule. The decision affects an employer’s injury reporting process, including post accident drug and alcohol testing policies and safety incentive programs. The decision only denies the preliminary injunction and a decision regarding a permanent injunction will come at a later date however, enforcement will begin December 1st without further delay and employers should review their policies and make the necessary procedural changes immediately.
While much of the focus on the final recordkeeping rule has been on the electronic reporting requirements, language addressing injury reporting was also clarified. The rule requires employers to have a reasonable injury reporting process. For post accident testing, OSHA said drug testing programs requiring blanket testing of all employees who experience an injury would violate the standard stating the threat of testing would discourage reporting. OSHA has instructed employers to only use post injury drug testing “when there is a reasonable possibility that drug use by the reporting employee was a contributing factor”.
In the decision, Judge Sam Lindsay said the organizations and employers seeking an injunction against enforcement of the rule failed to show that there would be irreparable harm if OSHA moved ahead with enforcing the rule.
On October 19, OSHA issued guidance on safety incentive programs, disciplinary programs and drug testing and is available on the OSHA website or by connecting to our blog: OSHA Issues Guidance on Post Accident Testing.