Atlantic Precast a model plaintiff in suit challenging OSHA rule’s anti-retaliation provisions

Sources: Associated Builders and Contractors, Washington, D.C.; CP staff

Atlantic Precast Concrete Inc. and two other construction-tied employers are central to a lawsuit seeking an injunction on a portion of the Occupational Safety and Health Administration’s “Improve Tracking Workplace Injuries and Illnesses” rule, effective August 10. The Tullytown, Pa.-based drainage products operator and seven co-plaintiffs request that the U.S. District Court for the Northern District of Texas declare the rule’s anti-retaliation provisions—detailed in Section 1904.35(b)(1)—as unlawful to the extent they “prohibit or otherwise limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.”

“[Such] programs help employers to promote workplace safety, which is supposed to be OSHA’s primary mission,” plaintiffs’ attorneys contend in a July 8 complaint initiating the Associated Builders & Contractors-led suit. “Instead, out of a misguided zeal to improve accuracy of reporting on workplace injuries (albeit with no evidence that injuries are not already being accurately reported), OSHA has lost sight of the importance of reducing the number and severity of injuries themselves.”

Joining ABC and Atlantic Precast are plaintiffs Owens Steel Co., a Columbia, S.C., fabricator, and Oxford Property Management LLC, Rochester, Minn. The latter three carry workers compensation coverage through a fourth plaintiff, Great American Insurance Co., Cincinnati. Their attorneys observe:

Plaintiffs Atlantic, Oxford, and Owens have implemented comprehensive incident-based safety incentive programs that encourage worker participation and interest in workplace safety. If these programs are eliminated by implementation of Section 1904.35(b)(1) as they must be according to OSHA’s statements in the New Rule, then Plaintiffs’ workplace safety will be significantly jeopardized and workplace injuries and illnesses will significantly increase in both frequency and severity, causing irreparable harm to the Plaintiffs’ members and insureds, and their employees.

The elimination of these safety programs will also cause Plaintiffs to experience a significantly higher number and a significantly greater severity of workers compensation claims, resulting in significantly increased premiums to the Plaintiff insureds, and potentially eliminating the ability of insurers such as Great American to write worker compensation policies for certain high risk businesses.

The other three plaintiffs in the suit—American Fuel & Petrochemical Manufacturers, National Association of Manufacturers and TEXO ABC/AGC Inc., Dallas-based ABC affiliate—represent contractors and companies that also maintain incident-based safety incentive and/or mandatory post-incident drug testing programs.

While stressing staff and member commitment to working with the agency on creating safer work sites, ABC Vice President of Health, Safety, Environment Greg Sizemore notes, “It’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

“We also object to OSHA’s attempt to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture,” he adds. “This part of the rule could well prevent employers from recognizing safety accomplishments.”

Plaintiffs request the court grant: a) a preliminary injunction prohibiting OSHA from implementing portions of the rule—specifically three Section 1904.35(b)(1) subparagraphs—applicable to employer safety incentive programs and routine mandatory post-incident testing; and, b) a declaratory judgment and order that Section 1904.35(b)(1) provisions are unlawful because they exceed or were not adopted in accordance with OSHA’s statutory jurisdiction, authority or applicable procedural requirements, and are “arbitrary, capricious, an abuse of discretion, and otherwise contrary to law.”

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