Dive Brief:

• A federal judge in Texas has denied a motion from construction and manufacturing industry groups requesting an injunction against implementation of the "anti-retaliation" provision of the Occupational Safety and Health Administration's new electronic recordkeeping rule, according to Politico.
• The provision, which takes effect Dec. 1, prevents employers from automatically drug testing workers post-accident unless drugs are suspected to have contributed to the event. The agency said the requirement would encourage workers to report injuries and illnesses without fear of repercussions.
• The plaintiffs, including the Associated Builders and Contractors and the National Association of Manufacturers, said the rule would prevent employers from successfully carrying out routine drug testing and other safety programs. However, Judge Sam Lindsay said they did not show how the provision would cause "irreparable harm."

Dive Insight:

OSHA had delayed enforcement of the anti-retaliation provision to give the court time to consider the case. Now, employers who require routine, post-accident drug and alcohol testing could face penalties, although they are still permitted to test if they suspect drugs or alcohol was involved in an accident.

Earlier this year, Greg Sizemore, ABC vice president of health, safety, environment and workforce development, said that routine post-accident testing can help root out the cause of accidents and can help prevent future incidents. He called OSHA's position that employers don't have the right to test "inconceivable."

The electronic recordkeeping rule also requires that companies with more than 250 employees make public their injury and illness records. Although not part of the lawsuit, the construction industry has also pushed back against this provision. Sizemore said that injury and illness forms contain sensitive information and should not be made public. However, the Department of Labor said that making injury and illness records public would let companies with good safety records showcase that to the public and would "nudge" other firms to step up their safety procedures. Many in the industry insist that the data on the forms only presents one narrow aspect of a company's entire history.