Tuesday, November 1, 2016

OSHA Delays Enforcement of Its Controversial Post-Accident Drug Testing Rule until December 1, 2016

As we discussed last summer, OSHA passed a regulation making it tougher to conduct post-accident drug testing. That rule was supposed to take effect today. However, OSHA has delayed the enforcement of the rule for another month to December 1, 2016. This is the second time that the regulation has been delayed, making one wonder whether the regulation will ever be implemented. 

The regulation passed by OSHA does not specifically refer to drug testing, but instead requires employers to establish a “reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately. The rule prohibits the procedure from deterring or discouraging an employee from accurately reporting a workplace injury.

In OSHA’s commentary that accompanied the regulation, it claimed that post-accident drug testing could deter the reporting of workplace injuries. It wrote that the rule prohibits employers from using drug testing as an adverse action against employees who report injuries or illnesses. Post-accident drug testing, according to the agency, should be limited “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.” 

The regulation effectively prevents employers from having a blanket drug-testing policy in place after each workplace accident. Instead, the rule will require employers to only perform post-accident drug testing when they have a reasonable suspicion that drug use may have contributed to the accident. 

Penalties for violating OSHA regulations are steep. An inadvertent violation currently could cost an employer up to $7,000, and a willful violation $70,000. Those penalties will increase when the new regulation takes effect to $12,471 and $124,712, respectively. 

As one might expect, this OSHA regulation generated a significant amount of controversy when it was passed. In July, a number of employers filed a lawsuit to stop the implementation of the rule. That caused OSHA to delay its enforcement of the rule from August 10 to November 1. The judge presiding over the lawsuit asked OSHA to delay the enforcement of the rule to December 1 so that the court would have more time to rule on the case. There has been some talk about Congress intervening and passing a bill to delay the enforcement of the rule even longer. 

Stay tuned to The Workplace Report for updates on this issue.