Executive Summary: A federal judge on
November 28 refused to block implementation of the anti-retaliation
provisions of OSHA's recordkeeping and reporting rule scheduled
to take effect December 1, 2016. The business groups challenging
the rule (collectively TEXO) argued that it would unlawfully
prohibit or limit incident-based employer safety incentive programs
and/or routine mandatory post-accident drug testing programs. The
court held that the rule's challengers failed to show that
irreparable harm would result or that the public interest would be
disserved if the court did not grant an injunction. See TEXO
ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28,
2016).
TEXO's challenge focused on language in the preamble of the
rule. First, that "it is a violation for an employer to use an
incentive program to take adverse action, including denying a
benefit, because an employee reports a work-related injury or
illness, such as disqualifying the employee for
