OSHA announced that it is delaying the effective date of the anti-retaliation portion of the new record keeping rule in order to provide additional outreach, education and guidance for employers. For employers that conduct post accident testing, the delay will allow additional time to review blanket post accident testing policies and implement new procedures.
Earlier this year, OSHA's new record keeping rule included an anti-retaliation portion that prohibits employers from retaliating against employees for reporting injury or illness in the workplace. The pre-amble of the final rule addressed automatic post- accident testing and indicated that such policies would be considered retaliation and violate the new rule. The provision was set to take effect on August 10, 2016 but has been delayed until November 1, 2016.
In July, the National Association of Manufacturers, Associated Builders and Contractors and other business groups filed a joint lawsuit in US District Court challenging OSHA's prohibition of mandatory post accident drug testing and employer safety programs. The Plaintiffs allege that OSHA's restrictions on post accident drug and alcohol testing improperly limit an employer's ability to investigate an incident and interfere with state workers' compensation laws requiring or encouraging employers to conduct post accident drug testing. If the court provides injunctive relief, the lawsuit will likely delay the November implementation of the provision.
We will update our blog as more information becomes available.