Court Denies Motion to Stay OSHA’s Enforcement of Anti-Retaliation Elements of E-Recordkeeping Rule

by Conn Maciel Carey LLP

On November 28, 2016, the federal district court Judge in the Northern District of Texas hearing Industry’s legal challenge to the anti-retaliation portions of OSHA’s new electronic recordkeeping rule (i.e., limits on injury reporting requirements, post-incident drug testing, and safety incentive programs), pi-rulingissued an Order denying Industry’s motion for a preliminary injunction that would have prohibited OSHA from enforcing these controversial new provisions. The Court’s Order clears the way for the new provisions to become effective and enforceable as of December 1, 2016.

Accordingly, it is not only prudent but perhaps imperative that employers immediately evaluate their safety incentive programs; drug testing programs; management bonus compensation schemes; and injury reporting policies to determine whether they comport with the new rule.

The rule adds new language to OSHA’s injury and illness recordkeeping regulation at 29 C.F.R. 1904.35(b)(1):

“reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. . . .  [A reporting procedure] is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

Because this language is so broad and vague, it is impossible to understand from the face of the rule what policies and conduct are required or prohibited.  OSHA acknowledged that, as well, and even defended against Industry’s Preliminary Injunction motion on the grounds that there was no way Industry can show irreparable harm from the new rule because there was no way for employers to know what the rule actually prohibits and requires.

However, recently, on October 19, 2016, OSHA issued a Guidance Memorandum that puts a little more meat on the bones of the regulation, rk-guidance-memoso to speak.  Here is our article from earlier this month that details OSHA’s interpretation of these new provisions from that Guidance Memo and the Preamble to the Final Rule.

For those concerned that the Court’s ruling telegraphs the ultimate outcome of Industry’s legal challenge, and effort to permanently stop enforcement of these provisions, do not despair.  A review of Judge Lindsay’s 17-page Opinion accompanying his decision makes clear that the Court’s denial of the preliminary injunction motion does not reflect on the Judge’s overall view of the merits or strength of Industry’s underlying legal challenge to the Rule.

In order for the Industry groups to prevail on this motion for a Preliminary Injunction, they needed to establish:

  • There is a substantial likelihood that the party seeking the injunction will prevail on the merits of the underlying action;
  • There is a substantial threat that irreparable harm will result if the injunction is not granted;
  • The threatened injury to the party seeking the injunction outweighs the threatened harm to the defendant; and
  • The granting of the preliminary injunction will not disserve the public interest.

In other words, Industry needed to establish BOTH that the new Rule was likely to be found unlawful, AND that allowing enforcement of these provisions in the meantime would cause irreparable harm to Industry.  Judge Lindsay seemed to go out of his way to explain that he denied the preliminary injunction ONLY on the grounds that Industry did not meet the high burden of proof necessary to establish irreparable harm.

“Plaintiffs have failed to carry their burden in demonstrating that there is a substantial threat that irreparable harm will result or that the public interest will not be disserved if a preliminary injunction is granted to enjoin implementation of the Rule pending resolution of this action. . . .  That the court has denied injunctive relief requested by Plaintiffs [industry] is not a comment or indication as to whether Defendants [OSHA] will ultimately prevail on the merits. This determination is left for another day.”

Judge Lindsay’s Opinion holds that the plaintiffs failed to meet its burden to show that denial of the injunction would result in a substantial threat of irreparable harm and, further, that granting the preliminary injunction would not disserve the public interest. Essentially, the Court found that Plaintiffs’ proof of irreparable harm was simply too speculative and conjectural to meet the burden of proof necessary to grant such extraordinary relief, characterizing plaintiffs’ proof as “conclusory statements of unsupported beliefs.” Judge Lindsay concluded that:

“[p]otential future injury based on unfounded fear and speculation [of the sort he ascribes to industry’s affidavits supporting its injunction request] is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.”

Additionally, the Court found that Plaintiffs’ proof that granting injunctive relief will not disserve the public interest fell short as well, for the same reasons it found insufficient proof of irreparable harm.  In sum, Judge Lindsay felt that Industry simply had not shown that revision or even elimination of their current safety incentive and drug testing programs would actually result in more workplace injuries.  Thus, an injunction to insulate these programs would not be necessary to serve the public interest of protecting employees from harm for the period that the Court entertains the full legal challenge to the Rule.

Significantly, however, the Court steered clear of any suggestion that it has determined that the plaintiffs do not have a sufficient case to demonstrate the likelihood of success on the merits of its challenge to the Agency’s authority to promulgate these new anti-retaliation provisions.   Thus, any attempt to read the tea leaves is premature just based on this denial of the preliminary injunction. As Judge Lindsay stated, this determination will need to await another day.  Unfortunately, that day may be many months in the offing, and in the interim, OSHA is free to begin enforcing its new Anti-Retaliation Recordkeeping Rule.

The denial of a preliminary injunction is immediately appealable if it is related to the substantive issues of the litigation, which this injunction certainly is.  Regardless, even with an emergency appeal, the rule will technically go into effect well before any decision by the Fifth Circuit court of appeals is possible.  Also, because of the high standard to overturn a district court’s Judge’s on issues like this, and Judge Lindsay’s very thorough opinion, a successful appeal on the preliminary injunction seems unlikely.  The better route to undoing this rule through the courts, is to move the overall legal challenge to a hearing on the merits as soon as possible.

A successful outcome of Industry’s legal challenge may not be the only obstacle that stops OSHA from enforcing this controversial new rule over the Long Term.  It remains to be seen whether a Trump Administration will support the Rule if it agrees the Rule disruptive of current industry practices.  Once in place, the new Administration could consider a range of options, from formally rescinding the rule through rulemaking, to issue new formal interpretations that cut the legs from the Rule, to directing Agency enforcement personnel to not prioritize enforcement of the new rule.  Similarly, either on its own or through efforts of Congress, funds earmarked for enforcement of this rule could be denied or reallocated, effectively shelving the rule even if it technically remains on the books.

A Trump Administration pull-back of the Rule and/or an ultimate successful outcome of Industry’s challenge, however, are at best months, and more likely years away.  In the meantime, as of tomorrow, OSHA has authority to commence enforcement of the rule. We suspect that the current leadership team at OSHA will have a high interest in using the waning days of the Obama Administration to aggressively enforce this new rule to incentivize as many employers as possible to make changes to their safety incentive, drug testing, late reporting and other implicated programs.  Accordingly, to ensure against legal exposure for regulatory violations of OSHA’s new rule, companies need to carefully analyze their existing programs and policies to determine whether modifications and revisions are necessary to become compliant with the new regulation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Conn Maciel Carey LLP | Attorney Advertising

Written by:

Conn Maciel Carey LLP

Conn Maciel Carey LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.