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NAE News Highlights
The New OSHA Rules Have Taken Effect, for Now.
A Texas federal court has denied a motion for preliminary injunction that was filed by various trade associations and would have prevented OSHA from implementing its new anti-retaliation rule. In denying the motion for preliminary injunction, the court found that the trade associations failed to show they would be irreparably harmed absent a nationwide injunction against the new rules. Therefore, OSHA was free to begin enforcing their new rules on December 1, 2016, as scheduled.
As a reminder, OSHA's new anti-retaliation rule prohibits employers from automatically conducting post-accident drug testing, unless drugs are suspected to have contributed to the accident. According to OSHA, the purpose of the anti-retaliation rule is to encourage workers to report injuries and illnesses without fear of repercussion. Employers, on the other hand, have argued that the rule would prevent them from successfully carrying out routine drug testing, which can be used to help determine the cause of workplace accidents and prevent similar incidents in the future.
Finally, although the preliminary injunction was denied, final disposition of the matter is still pending.
Appellate Court Agrees to Expedite Appeal of Injunction against New FLSA Rules
On December 8, 2016, the Fifth Circuit Court of Appeals issued an order granting a request by the Department of Labor ("DOL") to conduct an expedited appeal of a nationwide preliminary injunction that was issued against the new FLSA overtime rules.
Based on the court's order, briefs for the appeal are to be filed according to the following schedule:
December 16, 2016 - Appellants' opening brief and record excerpts
December 23, 2016 - Amicus briefs in support of appellants
January 17, 2017 - Appellees' brief and record excerpts
January 24, 2017 - Amicus briefs in support of appellees
January 31, 2017 - Appellants' reply brief
In addition, the court ordered that oral argument will be scheduled "for the first available sitting after the close of briefing."
On a somewhat related matter, President-elect Trump will be sworn into office on January 20, 2017, which means the appeal will still be pending when he takes over as President of the United States. It will be interesting to see whether Trump directs the DOL to change courses with regards to its appeal once he takes office. If the DOL is not instructed by President-elect Trump to withdraw the appeal, it is possible that the Fifth Circuit could issue a ruling in just a few months.