OSHA Delays Drug Testing Rules
This summer the Occupational Safety and Health Administration (OSHA) published final rules regarding the reporting of workplace injuries and illnesses. These rules include a substantial limitation on an employer’s ability to conduct post-accident drug and alcohol testing. As announced, post-accident testing would be limited to instances where an employer could demonstrate actual impairment – not just the presence of drugs or alcohol in a given sample – and where drug use is likely to have contributed to the incident. The new rules were scheduled to go into effect on August 10, 2016. However, after a lawsuit challenging the validity of the agency’s rulemaking was filed in Federal court in Texas, OSHA agreed to delay enforcement until November 1, 2016.
On October 19, 2016, at the suggestion of the court, OSHA agreed to further delay enforcement of the new rules until December 1, 2016. This latest delay is intended to permit the parties to more fully argue their positions and to give the court the court sufficient time to resolve the legal challenge to the rules.
Many Texas insured’s are worried about the effect of the federal rules on their abilities to investigate workplace accidents. Texas workers’ compensation carriers are concerned that the rules will impede their abilities to assert the intoxication defense on claims. The implementation delay may provide some relief. Meanwhile, the employment law bar has stepped forward to offer advice to employers who have concerns about how to conduct their business in light of the proposed rules.
One Atlanta-based, nationally recognized, labor and employment law firm, Constangy, Brooks, Smith & Prophete, LLP has published an analysis of the new rule, cautioning employers not to panic.
If an employer’s motivation for having post-accident drug testing is for some valid reason other than discouraging employees from reporting injuries and illnesses, we believe the policy will not run afoul of §1904.35(b)(1)(iv). There are generally three categories that constitute valid reasons for post-accident or -injury drug testing: Drug-Free Workplace policies and state workers’ compensation laws, which are intended to discourage drug use, reasonable suspicion of drug impairment, and “reasonable possibility” situations.
In addition, the Defense Research Institute (DRI), has scheduled a November 9, 2016 webinar, hosted by Laurie Goetz Kemp, a partner with the Indiana law firm of Kightlinger & Gray, which promises to provide an overview of the new OSHA regulations and requirements for electronic reporting, detailing who is required to report electronically, what information must be submitted, and when reporting must occur. Registration information for the DRI webinar can be found at the DRI website.
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