Texas is currently a hot spot for legal challenges to U.S. Department of Labor (DOL) administrative rules. Just this past week, a judge in the Eastern District of Texas granted a preliminary injunction and ruled that the DOL’s Overtime Rule was to be put on hold because the state and business plaintiffs were able to establish a prima facie case for potential success on the merits and demonstrate “irreparable harm” should the rule move forward as planned.
Many employers were hoping for a similar result with regard to the Occupational Safety and Health Administration’s (OSHA) final rule regarding injury and illness reporting, titled “Improve Tracking Workplace Injuries and Illnesses,” as the Rule is scheduled to go into effect December 1, 2016.
Specifically, in Texo ABC/AGC, Inc. v. Secretary of Labor—also in a Texas court, this time the Northern District—the plaintiffs (who are comprised of industry trade associations, insurance providers, and several companies) requested an order declaring that “Subparagraphs 1904.35(b)(1)(I, (iii), and (iv) of the final rule issued by [OSHA] . . . are unlawful to the extent that they prohibit or otherwise limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.” Plaintiffs have alleged that the Rule exceeds OSHA’s statutory authority, and they asked not only for declaratory relief, but also for a nationwide preliminary injunction.
After examining just two of the four requirements for a preliminary injunction (the threat of irreparable harm and the public interest), the judge determined that an injunction was not warranted. In fact, the judge found that plaintiffs had not actually disputed the applicability of the DOL’s anti-retaliation provision per se, but instead only took issue with the enumerated examples listed in the preamble to the Rule (i.e. prohibitions on safety incentive programs and drug testing). The judge thus simply analyzed whether the effects of the Rule on these programs would result in irreparable harm to plaintiffs and whether implementation of the Rule at this point in time would be against the public interest. Ultimately, the judge ruled that the evidence submitted by plaintiffs was insufficient to demonstrate irreparable harm or public interest concerns, referring to the evidence as “conclusory statements,” “unsupported beliefs,” and “unfounded fear and speculation.”
The Rule thus is going into effect as planned. Consequently, OSHA will now be able to investigate retaliation complaints related to post-accident testing, safety incentive programs, or late injury reporting, and it will conceivably issue citations accordingly.
Although he denied the request for a preliminary injunction, the judge clarified that his ruling should not be read to indicate that the Rule will ultimately survive on the merits. That question is “left for another day.” For now, however, employers must comply with the Rule as written. This will require paying close attention to the Rule, as well as closely scrutinizing any possible safety incentive or drug testing programs that might run afoul of the new regulations.