Further Delays to OSHA's Anti-Retaliation Rule

Posted by: Jenny Sloan

OSHA has decided to further delay enforcing the controversial anti-retaliation provisions of the Improve Tracking of Workplace Injuries and Illnesses rule until December 1, 2016

According to OSHA's Frequently Asked Questions (FAQ), the rule "does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be rataliatory and this rule would not prohibit such testing." A link to the full list of FAQs can be found here.

On October 19, 2016, OSHA released a memorandum which states that when OSHA evaluates if post-accident drug testing was reasonable, it will take into consideration the below factors:

  1. Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury/illness;

  2. Whether other employees involved in the incident that caused the injury/illness were also tested or whether the employer only tested the employee who reported the injury/illness; and

  3. Whether the employer has a heightened interest in determining if drug use could have contributed to the injury/illness due the hazardousness of the work being performed when the injury/illness occurred.

TPS Alert is continuing to track the rule and will keep our clients well-informed of any new information that may arise.