Delayed OSHA enforcement of post-accident drug testing policy now in effect
After delay, OSHA implements enforcement of new post-accident drug testing policy.
After delaying the enforcement date of its policy against employers conducting post-accident drug testing, the Occupational Safety and Health Administration (OSHA) has implemented the policy.
The policy was expressed in the commentary to OSHA’s May 2016 revised regulation on Recording and Reporting Occupational Injuries.
OSHA stated it would start enforcing policies it believed had been implicit in the past, including enforcement against employers that conducted post-accident testing for reasons other than:
- Regulatory compliance.
- Situations in which drug use is likely to have contributed to the accident and for which the test can accurately identify impairment.
OSHA explained its position that “blanket post-injury testing policies deter proper reporting.”
The broader recordkeeping rule takes effect Jan. 1, 2017.
On July 8, a coalition of industry groups and employers filed suit in federal court seeking to block OSHA from enforcing its policy against post-accident testing and other employer actions that OSHA believed to be retaliatory and discouraging of reporting, according to court papers.
OSHA responded on Aug. 19 saying the plaintiffs had not established that they would be harmed by the policy, and that the anti-retaliation provisions of the rule are necessary for the viability of the broader recordkeeping rule.
Though this lawsuit is unlikely to be resolved soon, OSHA moved the enforcement date to November in light of the response and other anti-retaliation policies in the revised rule.
OSHA and its regulations apply only to the private sector. Traditionally, federal law has imposed very few limitations or requirements on private-sector drug testing of employees. This changes with OSHA’s prohibition on routine post-accident testing.
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