Texas Court Declines to Enjoin OSHA's Anti-Retaliation Rules

In the last few weeks, federal courts in Texas have been the center of attention, deciding what rules and regulations of the current administration may fall to legal challenges asserted in the jurisdiction by collections of states, business, and trade associations, among others.  Texas courts have issued preliminary injunctions impacting the persuader rule, and most recently the DOL's new overtime rule. 

On Monday, efforts to enjoin the anti-retaliation provisions of OSHA's new rule failed.  National Association of Manufacturers, the Associated Builders and Contractors, Inc. and others challenged the validity of several aspects of the new rule.  Their preliminary injunction motion focused on the new rule's anti-retaliation provisions, and, in particular, the rules governing incentive and drug testing programs.  Plaintiffs argued those programs promote safety and are integral to reducing the number of workplace injuries.  Therefore, the new rule would irreparably harm businesses by impairing their ability to rely on incentive and drug testing policies in their quest to reduce workplace injuries. 

Texas district court judge Sam Lindsay denied plaintiffs' request for a preliminary injunction, holding plaintiffs failed to show they are likely to suffer irreparable harm if the rules go into effect.  According to Judge Lindsay, "[p]otential future injury based on unfounded fear and speculation" about how the rule will effect business does not show a likelihood of irreparable harm.  Therefore, a preliminary injunction was not warranted.

As a result of the decision, the December 1, 2016 enforcement date remains in effect.  However, that could change. the challenge to the validity of the rules is not over, as the decision addressed only plaintiffs' request for a preliminary injunction, not the merits of plaintiffs' challenges.  The merits will be addressed at a later date.  But for the short term, employers should comply with the new rules to avoid challenges by OSHA.

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