Update on OSHA’s New Injury-Reporting Provisions Involving Incentive Programs and Drug & Alcohol Testing
As reported in our October Special Alert, due to a Motion for Preliminary Injunction in a case pending in the Northern District of Texas that challenges certain aspects of OSHA’s new injury-reporting regulations, OSHA delayed enforcement of these provisions until December 1, 2016. (The case is Texo ABC/AGC, Inc. et al v. Perez, United States District Court for the Northern District of Texas, No. 3:16-CV-1998-L.) On November 28, 2016, the court issued an order denying Plaintiff’s Motion for Preliminary Injunction, finding that Plaintiffs had not shown there would be irreparable harm if the court did not enter a nationwide injunction enjoining implementation of OSHA’s reporting rule. The court also specified, however, that its ruling on the requested injunctive relief “is not a comment or indication as to whether the Defendants will ultimately prevail on the merits.” So, while the Plaintiffs could still eventually prevail, the Rule went into effect as of December 1, 2016.
The controversial and contested aspects of the regulations involve illustrative examples provided by OSHA in the Preamble to the Final Rule regarding incentive programs and drug and alcohol testing policies. OSHA views incentive programs that reward employees for no injuries or low injury rates (with a bonus or other type of prize) as discouraging employees from reporting injuries. Similarly, OSHA considers drug and alcohol testing performed after an employee is injured, where drug or alcohol use is not likely to have contributed to the accident, as potentially discouraging the reporting of injuries or being used to retaliate against employees that report injuries.
Accordingly, if your company has incentive programs or drug and alcohol testing policies that potentially discourage the reporting of injuries, or such policies are sometimes implemented in a way that could be viewed as retaliatory, now is a good time to perform a review of such programs or policies to see if they run afoul of the new Rule. Please contact Jill Hyman Kaplan at 484-430-2315 or James McClammer at 484-430-2334, if you need assistance in evaluating your company’s incentive programs or drug and alcohol testing policies.