In a matter currently pending in United States District Court in the Southern District of Texas, the National Federation of Independent Business (“NFIB”) has moved to have the federal district court issue an injunction that would prevent implementation of the Occupational Safety and Health Administration’s (“OSHA”) new rules with respect to its recording and reporting regulations under 29 CFR 1904. The NFIB allege that the Administrative Procedures Act (“APA”) was violated by the U.S. Department of Labor in promulgating these new rules because OSHA did not provide the legally required notice. OSHA argues that the APA does not direct courts to second-guess the discretionary policies of executive agencies and that the APA is highly deferential. Moreover, the NFIB and intervening states, such as Texas, Arkansas, and Alabama, have not met the heavy burden required for the judge to enter an injunction.
OSHA previously agreed to delay implementation of its anti-retaliation provisions until December 1, 2016 . OSHA has also delayed its electronic record keeping rule that would require certain employers to electronically submit accident, injury, and illness data to be implemented January 1, 2017.
At this time, it is unclear when a ruling will be made as to the injunction.