How Employers Can Prepare for OSHA's New Post-Accident Testing Rules
Note from Jennifer Gladstone: In yesterday’s Legislative Alert we told you about some changes to OSHA’s post-accident testing rules. Our partners over at Current Consulting Group have shared a blog that offers a much deeper explanation.
On May 12, 2016, The Occupational Safety and Health Administration (OSHA) issued a final rule to revise its Recording and Reporting Occupational Injuries and Illness regulations. The rule is part of an extensive rulemaking that concerns the tracking of workplace injuries and illnesses. OSHA's regulation at 29 CFR part 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments. Employers covered by these rules must record each recordable employee injury and illness.
OSHA’s concern in amending the regulation is that employers’ post-accident testing policies should not discourage or deter employees’ reporting of workplace injuries and that policies mandating automatic post-injury drug testing as a form of adverse action that can discourage reporting. OSHA believes “the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”
Newly Announced Enforcement Delay
OSHA just announced it is delaying enforcement of the anti-retaliation provisions to conduct additional outreach and provide educational materials and guidance for employers. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016. In addition to the delay, number of employers and employer groups — including the National Association of Manufacturers and Associated Builders and Contractors, Inc. filed suit last week in a federal court in Texas seeking to block parts of the new OSHA rule. The lawsuit contends that the parts of the rule dealing with discrimination and retaliation — and, most notably, the part limiting post-accident drug testing — exceeds the Agency’s authority, interferes with state workers’ compensation laws, and is arbitrary and capricious.
Confused? You are not alone…
There are several parts of the rulemaking that are causing confusion for employers and the industry as a whole and we anticipate that OSHA will have to clarify “impairment” as it refers to drug testing because, unlike alcohol, there are no drug testing methods that show current drug impairment.
That said, there are some things that employers can do in advance of November 1, 2016 date to prepare:
- Remember, the OSHA rule does not impact DOT or other federally mandated post-accident testing nor does it affect policies complying with mandatory or voluntary state laws. The new OSHA regulation requires that employers suspect substance abuse before conducting a post-accident drug test is already required by some state laws but is contrary to other state drug testing laws and workers' comp regulatory requirements. So, the focus of OSHA’s amended regulation is on the post- accident testing conducted under independent authority as an employer.
- Review your policy – post-accident policies should be reviewed and updated to ensure the language cannot be construed as “blanket” and therefore be presumed to be retaliatory and deter or discourage reporting.
- Review your state laws – we know state laws can be a part of an employer policy as well as the enforcement of post-accident or post-injury. Many states have laws that apply to employers in that state. Adherence to state Drug Free Workplace and state worker’s compensation laws will not change and OSHA will not find a violation of 1904.35 (b)(1)(iv) when post-accident testing is performed in compliance with these laws.
- Consider training on post-accident “reasonable suspicion” for your supervisors and managers and review your reporting procedures to streamline the process making reporting easier for employees. Remember, under OSHA drug test only when impairment could be a contributing factor so training and documentation is critical.
- Continue to monitor the issue for clarification on the final ruling from OSHA.
Contact CCG at firstname.lastname@example.org or 215.240.8204 for a policy update including addendums for all mandatory and voluntary state drug testing laws and information on our OSHA and Reasonable suspicion training webinars.
Below are links and the guidance from the FAQ on the OSHA site on this topic.
Links to the rule:
From the FAQs:
May an employer require post-incident drug testing for an employee who reports a workplace injury or illness?
The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing.
See all the FAQs here: https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html