Less than a month before the August 10th effective date of OSHA’s Final Rule, a lawsuit was filed which sought to postpone the enforcement of subparagraphs 1904.35(b)(1)(i), (iii), and (iv). These changes discuss post accident drug testing, and would require employers to establish “reasonable procedure” for employee reporting of work-related injuries and illnesses. One way OSHA planned to achieve this was to require post-accident testing to be tied to reasonable suspicion.
According to the National Association of Manufacturers and others, these provisions prohibit incident-based employer safety programs and routine mandatory post-incident drug testing programs, “notwithstanding substantial evidence in the administrative record that these programs are needed to make workplaces safer.” The lawsuit also claims that The New Rule “is contrary to and exceeds OSHA’s statutory authority and is otherwise arbitrary, capricious and not in accordance with applicable law.” In response, OSHA has postponed the effective date of the Final Rule related to post-accident drug testing.
Deputy Assistant Secretary, Dorothy Dougherty, explained “In order to provide the opportunity to conduct additional outreach to the regulated community, we have decided to delay enforcement of these provisions until November 1, 2016. We are currently developing educational materials for employers and enforcement guidance for your staff that will be made available shortly.”