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OSHA Begins Enforcing Post-Accident Drug-Testing and Safety Incentive Rules

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Just yesterday, the Occupational Safety and Health Administration (OSHA) began enforcement of its new post-accident drug testing and safety incentive rules. The rules, which have caused some controversy since originally communicated on May 11, 2016, had an original effective date of Aug. 10, 2016. Having been delayed twice due to complaints of confusing requirements and reporting, they now have an enforcement effective date of Dec. 1, 2016. To clarify some of the original confusion, the agency issued guidance on Oct. 19, 2016, although some still feel there is not enough clarification.

There is particular pushback under the anti-retaliation provisions. OSHA’s communicated purpose to these provisions is to ensure employer reporting programs do not discourage employees, who may fear possible retaliation by the employer, from reporting incidents. Essentially, employers are not allowed to discourage workers from reporting workplace injuries or illnesses. In addition, they must notify workers that they will not be retaliated against for reporting such incidents.

OSHA’s stance is that some safety incentive plans, as well as all-inclusive post-accident testing, may lead to employees inhibited willingness to report accidents. Further, the agency has stated post-accident testing should essentially be on a case-by-case basis for those where “employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

In addition to the anti-retaliation provisions, more information is coming soon from OSHA. Another portion, the electronic reporting rule, will take effect Jan. 1, 2017. This rule will require those covered by it to electronically submit injury and illness data to OSHA. This will be the same information companies are already required to record on the OSHA Injury and Illness forms, and will be phased in according to company size.

If you have questions regarding this topic, please contact the HKP HR Consulting department at 888-556-0123.