OSHA Update—Texas Judge Denies Injunction Against Enforcement of Anti-Retaliation Provisions of Final Rule

29 November 2016 Labor & Employment Law Perspectives Blog
Authors: Taylor Eric White

On November 28, 2016, Judge Sam Lindsay in the United States District Court for the Northern District of Texas denied an employer group’s request for a nationwide injunction against the Occupational Safety and Health Administration’s enforcement of certain anti-retaliation provisions in the new final rule.  As we reported previously on the Work Knowledge Blog, the employer group filed a Complaint for Declaratory and Injunctive Relief in July in the Northern District of Texas, captioned TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D.  The Complaint challenged the new final rule to the extent it prohibited or limited safety incentive programs and/or mandatory post-accident drug testing programs.

After considering briefing by both the employer group and the Secretary of Labor on the court’s authority to issue a nationwide injunction, among other issues, Judge Lindsay held that the employer group failed to establish a substantial threat of irreparable harm and did not show that the public’s interest would be disserved if an injunction was not granted.  Notably, the Court held that the employer group’s evidence of irreparable harm was actually based on “unfounded fear and speculation.”  Further, as we have stated previously on the issue, Judge Lindsay agreed with the Secretary of Labor that the new final rule “simply incorporates the existing prohibition on employer retaliation against employees for reporting work-related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.”

Judge Lindsay’s full Memorandum Opinion and Order can be accessed here.

This ruling means that OSHA will be cleared to begin enforcement of the final rule on December 1, 2016.  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.  To that end, if you have any questions about the applicability of the new final to your business, reach out to an attorney knowledgeable about the agency and its requirements.

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