On Nov. 28, 2016, the United States District Court for the Northern District of Texas declined to grant a nationwide preliminary injunction enjoining the Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) from enforcing subparagraphs 1904.35(b)(1)(i), (iii), and (iv) of the final rule issued by OSHA titled “Improve Tracking Workplace Injuries and Illnesses,” 81 Fed. Reg. 29,624 (May 12, 2016) (the New Rule).  Texo ABC/AGC, Inc., et al. v. Thomas E. Perez, et al., No. 16-cv-1998-L (N.D. TX. July 2016).

The Plaintiffs in Texo, a group of trade organizations and companies, sought to enjoin the DOL and OSHA from enforcing these subparagraphs because they 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.” The court determined that the plaintiffs failed to meet their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction.

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