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Assault on Pizza Parties, Drug Tests and Executive Compensation

PART 4: Legal Challenge, Delays, What to Do

This is final portion of a four-part series on the topic. Click the hyperlinks to read Part 1: Overview and History, Part 2: New Obligations, Enforcement Mechanism or Part 3: Agency Attitude to Programs.

Industry Challenge

Following the enactment of this controversial rule [the Recording and Reporting Occupational Injuries and Illnesses regulation], eight industry groups and companies—among them, Associated Builders and Contractors, National Association of Manufacturers, and American Fuel and Petrochemical Manufacturers—filed suit in the U.S. District Court for the Northern District of Texas on July 8 challenging these anti-retaliation portions of the rule.

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Eight industry groups and companies filed suit in July challenging these anti-retaliation portions of the rule and also moved for a preliminary injunction to prohibit OSHA from enforcing the anti-retaliation provisions of the rule until the court could rule on the merits of the challenge.

The legal challenge is based on the fact that, as quoted from the court document:

“The New Rule is arbitrary, capricious, and an abuse of discretion, because OSHA enacted the regulation under an improper bias and from a prejudgment of the essential issues related to Employer Safety Incentive Programs and Routine Mandatory Post-Incident Testing Programs, thereby ignoring all available evidence contradicting its assertion that the Safety Programs lead to materially inaccurate reporting or underreporting of workplace injuries or illnesses.”

The bases for the suit are two-fold:

• OSHA did not show that the anti-retaliation provisions, including provisions aimed at restricting post-accident drug tests, would actually reduce injury rates; and
• OSHA did not follow requirements of the Administrative Procedures Act (“APA”) in the rulemaking. The APA-based claim relates to OSHA’s failure to conduct a regulatory impact analysis demonstrating that the purported increase in recordkeeping accuracy and employee reporting outweighs the overall workplace safety benefits provided by safety incentive and drug testing programs.

In addition to the underlying challenge, the industry representatives also immediately moved for a preliminary injunction to prohibit OSHA from enforcing the anti-retaliation provisions of the rule until the court could rule on the merits of the challenge.

Enforcement Delayed

Interestingly, only one day after the memorandum and emergency motion seeking the preliminary injunction were filed, OSHA issued an enforcement memorandum delaying enforcement of the retaliation provisions of the new recordkeeping rule to Nov. 1—nearly three months later than the rule’s effective date of Aug. 10 for this portion of the rule.

Lest industry read too much into the extension or the timing of when it was granted, OSHA is not conceding that the legal challenge is likely to prevail, instead stating that the delay is to allow OSHA time to “conduct additional outreach and provide educational materials and guidance for employers.” 

Note, however, that OSHA did not delay the effective dates of the other major component of the rule requiring many companies to electronically submit injury logs.

On Aug. 19, OSHA filed its Opposition to the Plaintiff’s Motion for a Preliminary Injunction, urging the judge to not delay enforcement of the anti-retaliation provisions, including OSHA’s policies on safety incentive programs and post-accident drug testing, stating:

“Plaintiffs have established no harm at all, much less irreparable harm[.]  OSHA, by contrast, has determined that the anti-retaliation provision is necessary for the viability of its broader Recordkeeping Rule[.]”

OSHA strongly believes that its interpretation of the new rule is reasonable and permissible under the Chevron doctrine of agency deference.

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Although OSHA issued an enforcement memorandum delaying enforcement of the retaliation provisions of the new recordkeeping rule, it did not delay the effective dates of the other major component of the rule requiring many companies to electronically submit injury logs.

Further, and somewhat ironically, OSHA asserts that it is premature to delay enforcement because OSHA has not issued any guidance on what factual scenarios will ultimately lead to a citation, so the issues are not ripe for review at this time. In other words, even though OSHA has published a final rule, supposedly meeting the notice and comment intent of the APA, there is no way an employer can be harmed yet, because there is no way employers no what the rule allows and prohibits! That alone should be reason to kill the rule.

Second Delay

While the court was in the process of reviewing the parties’ submissions, on Sept. 26, a skirmish broke out between the parties when OSHA filed what amounts to a surreply [an additional reply to a motion filed after the motion has already been fully briefed]—normally not allowed under the court’s rules of procedure—on the basis that the plaintiffs had for the first time asked in their reply brief to apply the scope of the requested injunction to “any jurisdiction where Plaintiffs are located, i.e., nationally.” 

The plaintiffs responded by strongly disagreeing that their requested nationwide injunctive relief was requested for the first time in their reply brief, and therefore opposing OSHA’s request for further opportunity to brief the issue.

In a rare development—at least in part because of the parties’ skirmish over the scope of the injunctive relief being requested—Judge Sam Lindsay [of the U.S. District Court for the Northern District of Texas] issued an order requesting OSHA to extend the stay of enforcement of the challenged portions of the rule until Dec. 1. Judge Lindsay stated in his Oct. 14 Order that additional briefing by the parties should:

focus on “the issues of (1) whether a nationwide injunction that applies to Plaintiffs, as well as nonparties, is warranted in this case; and (2) whether such an injunction can be lawfully imposed by the court.”

OSHA advised the court Oct. 19 that the agency would agree to extend the stay of enforcement of the challenged portion of the rule, and then publicly announced its decision to postpone enforcement until Dec. 1.

In light of these recent developments, employers can take some comfort in the fact that there will be a decision by the District Court on industry’s request for injunctive relief prohibiting enforcement of the anti-retaliation portions of the rule prior to the date the new rule kicks in. 

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One action employers can take while waiting for a decision on a preliminary or permanent injunction is to provide refresher training on recordkeeping requirements to the individuals responsible for maintaining the injury and illness recordkeeping program.

Notwithstanding, it is still wise for employers to understand how these new provisions of the rule will affect their safety and health programs, and be prepared to comply with the requirements if the preliminary injunction is not granted. Stay tuned as the court case evolves.

What Should Employers Do Now?

Only time will tell what the outcome will be, but employers should understand how this new rule will affect their programs, and begin to prepare to make changes if a preliminary or permanent injunction is not forthcoming.

Here are some actions employers should consider taking in the near term:

• Provide refresher training on recordkeeping requirements to the individuals responsible for maintaining the injury and illness recordkeeping program, including fielding injury reports from employees, and completing 300 logs, 301 incident reports, and 300A annual surveys;
• Engage counsel to conduct attorney-client privileged audits of injury and illness recordkeeping forms and injury reporting policies;
• Post the latest version of the OSHA workers’ rights poster or otherwise inform employees about their right to report injuries without retaliation, as well as how to report;
• Work with counsel to evaluate and update (i) injury reporting policies to ensure they are not so burdensome that they may discourage reporting (e.g., drug testing only when there are injuries, very short windows of time to report, etc.); and (ii) safety incentive and management compensation programs to ensure they do not chill the right to report injuries; and
• For heaven’s sake, hide the empty pizza boxes if OSHA shows up at your workplace!

ABOUT THE THE BLOGGER Eric J. Conn Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric. SEE ALL CONTENT FROM THIS CONTRIBUTOR