Not So Fast: OSHA Delays Part of the New Rule

by Renee Mielnicki, Esquire

A few weeks aSlow4go I wrote about OSHA’s recent amendments to its recordkeeping and reporting rule. While there were several amendments, that blog post focused on the part of the rule that would impact employer post-accident drug testing policies. The rule was originally scheduled to take effect on August 10, 2016, which is not very far away.

As a brief recap, OSHA had taken the position (not within the new rule itself, but rather within the comments to the new rule) that blanket post-accident drug policies will now violate the recordkeeping rule. Instead, OSHA had instructed that employers adopt post-accident drug testing policies that “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.” In addition, OSHA further stated that employers do not need to specifically suspect drug use before testing, but that there should be a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for the employer to require drug testing.”

This new standard has not only created a lot of confusion among both lawyers and employers as far as what OSHA requires for post-accident testing, but it is now being challenged by a group of employers who say OSHA has overstepped the bounds of its authority by implementing this new rule. This group of employers recently filed a lawsuit in federal court to stop OSHA from implementing the rule. It looks like, because of this lawsuit, OSHA has decided to delay the effective date of the anti-retaliation portion of its new electronic recordkeeping portion of the rule (which is the part of the rule that would affect post-accident dslowrug testing programs). The effective date has been delayed for three months and will now not take effect until November 1, 2016.

So what does this mean for you? If you recall, the new rule applies to all employers unless the employer fits within one of the following partial exemptions: (1) the employer had ten or fewer employees at all times during the previous calendar year; (2) the employer operates in one of the specific low-hazard industries identified by OSHA. If you are an employer that has to comply with OSHA’s recordkeeping rule, you can breathe a sigh of relief (at least until November 1st) that you do not need to change your post-accident drug testing policies or practices to comply with the rule at this time. This will give us all additional time to figure out how to comply with the rule (assuming no further delays happen).

One more important reminder: Assuming OSHA’s new rule does take effect on November 1, if you are an employer whose post-accident drug testing policies are written to comply with a state workers’ compensation premium reduction law or some other federal law, such as those required by the Department of Transportation, you don’t need to worry about complying with the post-accident testing requirements of the new rule. OSHA has made it clear in the comments that the rule will not have an effect on drug policies that comply with those types of state or federal laws. We had received quite a few questions from employers covered by state premium reduction laws after last week’s blog and, just to clarify, these employers will not need to change their post-accident drug testing programs in light of the new rule.

If you have additional questions, please contact us at 855-873-0374 or by email to HRHelpline@eastcoastrm.com.

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