OSHA Delays Enforcement of Post-Accident Drug Testing Rule to December

Tommy Eden

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In high stakes litigation playing out before United States District Judge Sam Lindsey in Dallas, Texas, the government attorneys and those employer groups seeking to enjoin OSHA’s record keeping rule-anti-retaliation provision under 29 CFR 1904.35, have jointly agreed to extend the delay of enforcement until December 1, 2016. This is to give the parties further time to brief the issues focusing on the nationwide injunction requested, and the court’s authority to issue such an order.

Below is the delay of enforcement memorandum sent on October 18, 2016, to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses (1904.35(b)(l)(i)); requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation ((b)(l)(ii)-(iii)); and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses ((b)(l)(iv)). These provisions became effective on August 10, 2016.

OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABCIAGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.). OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.

This final regulation, if not enjoined, will on December 1, 2016, impact employer post-accident drug testing nationwide.

For more information on the new rule, download our free recorded webinar:

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Tommy Eden

Posted By: Tommy Eden

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law. He can be contacted at teden@constangy.com or 334-246-2901.

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