OSHA postponed enforcement of its injury and illness electronic reporting rule’s anti-retaliation provisions until Dec. 1 because of confusion over post-accident drug testing.
OSHA announced it will not issue citations for drug testing conducted under federal or state laws, or under state workers’ compensation laws.
“This is good news for employers who conduct drug and alcohol testing required by federal law, or in accordance with state laws, including state workers’ compensation premium reduction laws,” says attorney Kathryn J. Russo of the law firm of Jackson Lewis.
Under the rules that were adopted earlier this year, companies in covered industries with more than 250 employees will be required to submit Forms 300, 300A and 301 electronically.
When it announced the new rules, OSHA also says it will penalize employers who conduct post-accident drug and alcohol testing if it discourages employees from reporting injuries.
In its most recent guidance memo issued on Oct. 19 OSHA says that “The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”
OSHA stresses that employers are not prohibited from drug testing employees “who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting.”
OSHA still bans testing where injuries can’t be caused by drug use, and if the test can’t measure impairment when the injury or illness occurred.
The National Association of Manufacturers and other employer groups have asked a federal court to overturn the electronic reporting rules and issue a stay to block their enforcement (AA, 7-31-16, P. 2).
