Tag Archives: OSHA Post-accident Drug Testing Rule

INJUNCTION AGAINST OSHA DENIED: OSHA TO BEGIN ENFORCING ITS POST-ACCIDENT DRUG TESTING AND SAFETY INCENTIVE RULES TOMORROW (DECEMBER 1, 2016)

Contributed by Jonathon Hoag, November 30, 2016

63527433 - december 1. calendar on white background. 3d illustration.OSHA previously delayed enforcement of its controversial post-accident drug testing and safety incentive rules until December 1, 2016. OSHA agreed to the delay at the request of a federal Judge who was considering a lawsuit requesting injunctive relief to prevent the new rules from going into effect. This week, the Judge issued a decision denying the request for injunctive relief. In light of the decision, OSHA announced it intends to begin enforcement of the new rules on December 1, 2016.

As a reminder, this injunction was filed because during the rulemaking process, OSHA indicated that blanket post-accident drug testing programs or safety incentive programs that discourage reporting of injuries may constitute a violation and subject employers to penalties. Industry groups filed suit asserting that OSHA overstepped its authority and did not follow correct rulemaking procedures. The industry groups sought a nation-wide injunction, which would have relieved all employers from the new rules.

Importantly, in the ruling denying the request for an injunction, the Judge determined that post-accident drug testing and safety incentive programs are not prevented under OSHA’s new rules; OSHA is merely placing limitations on practices that might discourage the reporting of accidents. Employers should ensure that policies and practices concerning drug testing and safety incentives have been reviewed and updated in light of OSHA’s new rules.

UPDATE: OSHA DELAYS ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE UNTIL DECEMBER 1, 2016

Contributed by Jonathan Hoag, October 18, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.

OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge requested that OSHA delay enforcement of the rule until December 1, 2016 to allow time for a decision on the pending lawsuit. Today, OSHA informed the court that it has agreed to a further delay and it has advised all regions of the decision to delay enforcement until December 1, 2016. The court intends to make a determination on the request for an injunction prior to the December 1, 2016 deadline. If an injunction is entered, the court will also decide if it prohibits enforcement nationwide or only with respect to the parties.

Employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. or for an in-person seminar in Effingham, Illinois on October 20, 2016.

 

OSHA MAY POSTPONE ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE FOR A SECOND TIME

Contributed by Jonathan Hoag, October 17, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA may extend its stay on enforcing the post-drug testing rule until December 1, 2016.

47506356 - alarm clock - deadlineOSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge will only agree to review the issue further if OSHA will agree to postpone enforcement until December 1, 2016. OSHA must decide by October 18, 2016 if it will agree to delay enforcement. It is likely OSHA will agree to delay enforcement. However, it is unclear whether the court will enter an injunction to prevent enforcement of the rule, and if an injunction is entered whether it will apply nationwide or only to the parties that filed the lawsuit.

Unfortunately, it is doubtful employers will receive clarity on this issue until close to the deadline when enforcement is to begin – no matter if that deadline is November 1, 2016 or December 1, 2016. As such, employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. Or click here to register for an in-person seminar in Effingham, Illinois on October 20, 2016.