Update November 28: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.
OSHA has announced a second delay for the Anti-Retaliatory portion of the final Record Keeping rule announced in May. This is the section that addresses post accident drug and alcohol testing policies. Originally scheduled to go into effect in August, this portion of the rule was first delayed until November 1, 2016, in order to give further guidance to affected employers.
At the request of a judge hearing cases filed by business groups in Texas challenging OSHA's position on post accident testing, OSHA has further delayed the effective date of the Anti- Retaliatory portion until December 1, 2016.
Because of the uncertainty surrounding the outcome of the lawsuit, employers should not revise drug testing policies until the courts or OSHA provide definitive guidance.
For those of you that were scheduled for our educational webinars or training on post accident testing with reasonable suspicion in the next few weeks, we have postponed and will reschedule the webinars once a ruling has been made.
Please note that only the Anti-Retaliatory portion of the Record Keeping rule has been delayed. You should proceed with all other positions of the rule as required.
For more information on the delay, visit the OSHA website: OSHA delays enforcement of anti-retaliation provisions.
We will continue to keep you up to date on this development.