Employer groups sue to block OSHA's drug testing provisions

A number of employers and employer groups -- including the National Association of Manufacturers and Associated Builders and Contractors, Inc. -- filed suit last week in a federal court in Texas seeking to block parts of the new OSHA rule set to take effect in August.

UPDATE (7/14/16): OSHA has announced that it is going to delay enforcement of the anti-retaliation provisions of its "Reasonable Reporting Procedures" Rule until November 1. Read all about it!

UPDATE (10/20/16): OSHA has delayed enforcement again . . . to December 1.

The lawsuit contends that the parts of the rule dealing with discrimination and retaliation -- and, most notably, the part limiting post-accident drug testing -- exceeds the Agency's authority, interferes with state workers' compensation laws, and is arbitrary and capricious.

Register here for our free webinar, "Don't panic! Employers should be able to continue most post-accident drug tests under OSHA's new "Reasonable Reporting Procedures Rule." The webinar is from 1 to 2 p.m. Eastern on Thursday, July 28.

The plaintiffs also say that OSHA did not comply with procedures it is required to follow before issuing a new rule, and did not conduct a required regulatory analysis.

Bill Principe
Bill Principe

I talked about the lawsuit this morning with Bill Principe, co-chair of our firm's Workplace Safety Practice Group. "The parties challenging the new requirements have raised some compelling arguments," he said. "It will be interesting to see whether this leads to a stay in the August 10 enforcement date or compromise by OSHA."

Bill also noted that the lawsuit does not challenge the OSHA rule's requirement for electronic submission of information about workplace injuries and illnesses, but only the rule's discrimination and retaliation provisions.

Our prior coverage of the OSHA rule is here:

OSHA rule requires public reporting of injuries by employers, bans "unreasonable" requirements for employees to report

Don't panic! Employers should be able to continue most post-accident drug tests under OSHA's new "Reasonable Reporting Procedures" Rule (the bulletin for which the webinar was named)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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