DALLAS (Legal Newsline) - Several employers filed suit July 8 against the Occupational Safety and Health Administration (OSHA) in the U.S. District Court for the Northern District of Texas. 

The group includes TEXO ABC/AGC Inc., Associated Builders and Contractors Inc., the National Association of Manufacturers and the Great American Insurance Company, as well as four other manufacturing and construction companies.

The employers allege the new regulations released by OSHA in a document called "Improve Tracking Workplace Injuries and Illnesses” are unlawful because they prohibit or limit the use of incident-based employer safety incentive programs and mandatory post-accident drug testing programs that are currently in place. These are programs to “help employers promote workplace safety, which is supposed to be OSHA’s primary mission” the plaintiffs claim.

Patrick Tyson, a partner with Constangy Brooks, Smith & Prophete LLP and former assistant secretary at the U.S. Department of Labor, told Legal Newsline that OSHA doesn’t like the idea of drug testing. 

"OSHA believes drug testing discourages employees from reporting injuries," Tyson told Legal Newsline

"The argument follows that if an employee is involved in a minor accident or undergoes a small injury at work, they may be less likely to report the incident to avoid receiving a drug test. OSHA has always been concerned that employers do not fully report all the injuries that occur to their employees."

The plaintiffs state in their claim that there is “no evidence that injuries are not already being accurately reported” and that “OSHA has lost sight of the importance of reducing the number and severity of injuries themselves.”

Additionally, the plaintiffs claim that the regulation was released and imposed unlawfully. Under the federal Administrative Procedures Act, any government agency must involve the public by releasing a proposal of regulations and allowing comment on the proposal, Tyson said. 

"The employers allege adequate notice was not provided with OSHA’s latest regulations," Tyson said.

With opposition from the plaintiffs in this suit, as well as other organizations, OSHA has delayed the effective date of the regulations until Nov. 1. This will provide OSHA more time to develop answers and guidance as to how the regulations are to be interpreted and enacted by employers nationwide. 

"My guess is the lawsuit will probably continue and that may take months or even years to fully resolve,” Tyson said.

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