The third month is the charm, and after postponing its effective date from October and November, OSHA has implemented the electronic recordkeeping reporting rule. The rule went into effect Dec. 1, despite the fact that a number of different businesses filed in court to stop enactment.
While a judge declined the petitions to keep the rule from being implemented, he did address the primary concern of many employers: the ability to perform drug testing after a workplace injury or illness
U.S. District Judge Sam A. Lindsay noted that:
“The Rule does not include a per se ban on post-accident drug testing or incident-based safety incentive programs, and it is not entirely clear whether any of the programs currently implemented by Plaintiffs would violate the Rule.”
The companies responsible for filing the complaint were worried about the anti-retaliation component of the rule. OSHA stated that, under the new rule, the administration could legally perform and conduct an inspection that would allow them to see if a drug testing program or safety initiative was being forced on an employee as retaliation for reporting an illness or injury.
Companies feared that this meant their hands were tied when it came to testing for illegal drugs following an injury in the workplace, a common practice that we consider one of the core best practices of any safety program. Judge Lindsay’s ruling makes it clear that the new rule does not necessarily ban that type of testing.
Instead, a company that wants to perform a post-injury drug test needs to ensure that test is written as part of a fair, equitable company policy. If, for example, the company drug tests one employee who falls off a ladder, it would make sense that everyone who falls off a ladder should then be drug tested.
While OSHA can investigate a safety incentive or drug testing program to ensure that it was not developed as a form or retaliation, the administration cannot open an inspection without reason. The Supreme Court and fourth Constitutional amendment both provide that OSHA must have probable cause (for example, a complaint has been filed with OSHA).
Once they receive a complaint, OSHA will also need to find that the employee’s activity was protected and that the employer knew about the protected activity and made an adverse decision or reaction based on the protected activity.
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