A federal court in Texas has denied a request by a group of industry trade associations and employers to enjoin controversial whistleblower retaliation provisions contained in a new electronic reporting rule promulgated by the Labor Department’s Occupational Safety and Health Administration (OSHA) earlier this year. As a result, the expanded whistleblower antiretaliation protections went into effect on December 1, 2016.
The November 28 ruling denying the plaintiffs’ request for a preliminary injunction, issued by the U.S. District Court for the Northern District of Texas in TEXO ABC/AGC, Inc., v. Perez, No. 3:16-CV-1998-L (N.D. Texas November 28, 2016), concludes that the plaintiffs were unable to demonstrate the elements necessary to justify an immediate injunction. The plaintiffs alleged that the anti-retaliation provisions 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.
OSHA’s new rule requires covered employers to electronically provide injury and illness reports to the agency, and also adds language to its regulations that expands anti-retaliation protection by making it a violation to discriminate against employees for reporting a work-related injury or illness. These provisions of the new rule were originally to become effective on August 10, 2016, but that date was subsequently pushed back until December 1 at the agreement of the parties to the litigation pending the court’s ruling on the request for a temporary injunction.
Members of the Equal Employment Advisory Council (EEAC) can read more here.