OSHA Update: Court Allows OSHA’s New Anti-Retaliation Rules To Stand – At Least For Now

By Pat MillerRod SmithMatt Morrison, and Chuck Newcom

On November 28, 2016, the United States District Court for the Northern District of Texas denied a request for a preliminary injunction to prevent enforcement of OSHA’s controversial new anti-retaliation rules. The plaintiffs in that case, various industry groups, had filed a lawsuit seeking a declaration that the new rules, specifically as interpreted by OSHA to prohibit or limit incentive programs and post-accident drug testing, are unlawful. The preliminary injunction was sought to prevent the implementation of the new rules until the court decides the merits of the legal challenge.

In denying the request for a preliminary injunction, the court found that the plaintiffs could not show that they would suffer “irreparable harm,” or that the public interest would be negatively affected, in the absence of such relief. This ruling does not mean that the legal challenge is concluded, and the court may yet find the new rules to be unlawful, but it does mean that for the time being OSHA is free to enforce them. As we noted when the rules were announced OSHA’s interpretations of the new rules are flawed in many respects. This is especially true when it comes to the issue of post-accident drug testing. However, now that the Agency may proceed with enforcement, employers are again encouraged to review their policies and revise them appropriately. In our prior Updates we have provided tips to keep in mind when undertaking such a review. We also encourage employers to seek guidance from their counsel and safety professionals as they deem appropriate.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.


Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                   November 29, 2016