New OSHA Anti-Discrimination Rule, can I still do post-accident drug testing?
Many counties have expressed concern with the impact of the new OSHA anti-discrimination rule, with some believing the rule makes post-accident drug screening and safety incentive programs illegal. While the rule does not prohibit these practices, it does limit the way they are done.
The rule clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries must be reasonable and not deter or discourage employees from reporting, and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries.
UCIP recommends to prepare for the new rule by amending your post-accident drug testing policy to require testing after an accident where the influence of drugs or alcohol could have been a cause, or contributed to, the accident. An employee who was rear-ended at a stop sign for instance, would not be subject to a post-accident drug test. We believe that post-accident testing where the influence of drugs or alcohol could have been a cause or contributing factor to an accident will still be an acceptable practice under the new rule. Of course, any post-accident drug testing required by other state or federal rules, such as DOT standards, is still required, and should not be affected by the new rule.
With regard to safety incentive programs, counties should review the basis for incentives to determine if the program will pass the new anti-discrimination rule. Programs that are based on the number of injuries reported will likely be found in violation of the new rule, as such a program may tend to keep employees from reporting legitimate work injuries. Programs that are based on performance standards such as employees attending training or audit results that show employees are following safety rules and standards should still be acceptable under the new rule.
The new recordkeeping rule went into effect August 10, 2016, but OSHA has postponed any enforcement of the rule to November 1, 2016 to allow OSHA time to provide additional guidance on the impact of the rule, specifically on post-accident drug testing and safety incentive programs. Counties will also need to ensure they are prepared to comply with new electronic submission of OSHA 300 logs beginning in 2017. More information on how the electronic submission process will work is expected from OSHA in the coming months.
For those with more questions you can find more information online at OSHA’s recordkeeping page: https://www.osha.gov/recordkeeping/.
UCIP members can also get more information by attending the WCF Customer Safety seminar, OSHA 300 Log: Understanding the Requirements, which will be offered on December 8, 2016. Register online at www.wcf.com.