OSHA Ban on Incident-based Safety Incentive and Routine Mandatory Post-incident Drug Testing Programs Delayed

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July 18, 2016

The date for implementation of OSHA’s ban on two programs – Incident-based Safety Incentive and Routine Mandatory Post-incident Drug Testing – has been set back from August 10, 2016, to November 1, 2016, as a result of motion practice in a legal challenge.  The ban on these programs are part of a new regulation.  The U.S. Department of Labor Occupational Safety and Health Administration promulgated “Improve Tracking of Workplace Injuries and Illnesses” as published in 81 Federal Register 29,624 on May 12, 2016, and as amended  at 81 Federal Register 31,854 on May 20, 2016.  This new rule will be codified in 29 Code of Federal Regulations Part 1904.

Much of this new rule is to take effect in 2017, but the ban on Incident-based Safety Incentive Programs and Routine Mandatory Post-incident Drug Testing Programs was to have taken effect on August 10, 2016.  The National Association of Manufacturers and others filed a challenge to the new rule in the U.S. District Court for the Northern District of Texas, Dallas Division, seeking an injunction against the ban.  (Texo ABC/AGC, Inc., et al. v. Thomas E. Perez, Civil Action No. 3:16-cv-1998 (N.D. Texas)  While seeking a preliminary injunction against the ban immediately, the challengers have reserved the right to contest other portions of the new rule which are to take effect in 2017 at a later time.

The plaintiffs assert a number of reasons, but the heart of the matter is the assertion that OSHA’s ban is arbitrary and capricious.  According to the plaintiffs, OSHA views incident-based safety incentive programs and routine mandatory post-incident drug testing programs as retaliatory.  They assert that safety incentive programs and drug testing programs actually make the workplace safer and should be promoted by OSHA instead of being banned.  The plaintiffs filed their emergency motion seeking a preliminary injunction and an expedited briefing schedule on July 12, 2016.  On the following day OSHA announced that the August 10 effective date would be postponed to November 1, 2016.

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