October 11, 2018
Standard Interpretations – Clarification of OSHA’s position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R 1904.35 (b)(1)(iv)
June 27, 2017
New OSHA Rule and Post Injury Drug Testing
2017 Reporting and Recordkeeping Update
OSHA’s Anti-Retaliation Rules and Final Rule on Electronic Injury Reporting went into effect on January 18, 2017. The Anti-Retaliation provisions went into effect August 10, 2016. OSHA enforcement began on December 1, 2016.
Injury Tracking and Use of Disciplinary, Incentive or Drug Testing Programs
November 30, 2016
In May of 2016, OSHA announced new regulations addressing the reporting of injuries and illnesses. These rules included certain anti-retaliation provisions that have the potential to restrict safety incentive programs, immediate injury reporting rules and post injury drug testing. The original enforcement date was 8/10/2016. Enforcement was then delayed until 11/1/2016 and then again until 12/1/2016.
As a result, several industry groups filed suit against OSHA in federal court. Litigation is still pending. A final decision has not been made and circumstances could change. However, the official enforcement date recognized by OSHA is 12/1/2016. These regulations are the law.
With this in mind, employers should review their post injury drug testing policies immediately. Additional information can be reviewed at OSHA’s website:
August 19, 2016
OSHA issued a rule Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016) that revises its recordkeeping regulation (1904) to include electronic reporting. The new injury and illness tracking rule also addresses the need to inform employees about injury reporting procedures and specific information regarding anti-retaliation provisions. OSHA’s free Workplace Poster informs workers of their rights under the OSHA Act.
The anti-retaliation provision may impact an employer’s post injury drug testing program and procedures. Drug testing policies may need to be reviewed to help assure compliance with new regulations. The provisions became effective August 10, 2016, but OSHA has delayed enforcement again until December 1, 2016.
In addition to OSHA’s delayed enforcement there has been legal action taken by several businesses and business organizations challenging the new rule.
- Monitor information provided by OSHA. OSHA has indicated that the agency will be providing formal guidance on its interpretation of §1904.35 in either upcoming Frequently Asked Questions, a Compliance Directive, or an enforcement memo to the Regional Administrators. Monitor the OSHA website for important updates.
- Be prepared. Since OSHA enforcement date is currently set for November 1, 2016, review your post injury drug testing policy with your employment counsel and human resource professional in an effort to ensure compliance with applicable regulations including but not limited to OSHA.
- No effect on 2016 credits. As an ASIWCF member, if you are currently receiving the 5% Drug & Claim Management Credit, your 2016 credit will not be effected if you determine it is necessary to modify post injury drug testing policies and procedures to comply with the new OSHA regulations.
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We are here to help support your safety efforts. We will provide updates on this topic as they become available. You can also visit our Safety section for other resources available to you as a member of ASIWCF.