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Judge won’t delay OSHA electronic recordkeeping rule

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A Texas judge has declined to issue a nationwide preliminary injunction preventing the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule from taking effect. 

U.S. District Judge Sam Lindsay in Dallas, who is overseeing a challenge to the rule filed in July by the National Association of Manufacturers, Great American Insurance Co. and several other organizations, agreed with the Department of Labor’s argument that the plaintiffs did not meet the burden of proof required to demonstrate they would suffer irreparable harm from the rule taking effect, according to his decision filed on Monday. 

The judge was unpersuaded by survey evidence provided by officials contesting the rule. For example, Meloni McDaniel, president and CEO of Dallas-based commercial contractors association Texo, said 95% of its surveyed members had mandatory post-accident drug testing and 81% had employee incentive programs designed to reward employees for reducing workplace injuries. Ms. McDaniel said 89% of the surveyed members believe that these programs help reduce workplace injuries and their workplaces will be less safe if they were forced to eliminate the programs, according to the ruling. 

“Potential future injury based on unfounded fear and speculation of this sort is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted,” Judge Lindsay said in his decision. 

The evidence submitted by these officials is “similarly devoid of facts to support the belief that mandatory post-accident drug testing is more effective than other forms of drug testing or why the elimination or modification of post-accident drug testing would necessarily result in increased injuries if other drug testing remained in place,” he added. 

Judge Lindsay also ruled that the plaintiffs’ argument that a nationwide preliminary injunction is in the public interest “falls short” for similar reasons. 

The department previously agreed to delay implementation of the rule’s anti-retaliation provisions until Dec. 1 at Judge Lindsay’s request as he decided whether or not to issue the injunction.

“This ruling means that OSHA will be cleared to begin enforcement of the final rule on Dec. 1, 2016,” Taylor White, a Dallas-based associate in the labor and employment practice of Gardere Wynne Sewell L.L.P., said in a blog post. “Employers with affected safety incentive programs, disciplinary procedures and drug testing programs will need to ensure that their programs and procedures are appropriately worded and implemented to comply with the intent of the new final rule.”

In his decision, however, Judge Lindsay said that denial of the injunction request is “not a comment or indication” about whether the department would ultimately prevail in the litigation. 

“This determination is left for another day,” he said. 

A spokesperson for the National Association of Manufacturers, a lawyer for Great American and Ms. McDaniel could not be immediately reached for comment. 

The electronic record-keeping rule, set to take effect Jan. 1, 2017, requires certain employers to annually electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms.