OSHA further delays enforcement of post-accident testing ban

In a previous article, we outlined the Occupational Safety and Health Administration’s (OSHA) new final rules regarding the reporting of workplace injuries and illnesses. These rules include a substantial limitation on an employer’s ability to conduct post-accident drug and alcohol testing. As announced, post-accident testing would be limited to instances where an employer could demonstrate actual impairment – not just the presence of drugs or alcohol in a given sample – and where drug use is likely to have contributed to the incident. Originally, the new rules were to go into effect on August 10, 2016. However, when a lawsuit challenging the agency’s action was filed in a Texas federal court shortly after the final rule was announced, OSHA agreed to delay enforcement until November 1, 2016.

Today – at the suggestion of the court – OSHA agreed to further delay enforcement of the new rules until December 1, 2016. This latest delay is intended to permit the parties to more fully argue their positions and affords the court sufficient time to sort out legal issues and decide whether OSHA’s new rules – including the limitations on post-accident testing – should go into effect.

We will continue to follow this lawsuit and keep employers advised of any further developments.