As previously reported, OSHA’s latest revisions for covered employers will dramatically impact routine post-accident drug testing programs. The new rules are available for review here, but here’s what you need to know:
- OSHA Postponed Enforcement. OSHA just delayed the date on which it will begin enforcing these new requirements. OSHA’s memo postponing enforcement is available here. Now, OSHA will not begin enforcing the new regulation until November 1, 2016.
- Motivation for Change is Unclear. This delay may not be driven by OSHA’s concerns about employers struggling to assess the rules’ impact on wide-spread drug testing regimes. Rather, employer associations have already sued OSHA, in particular challenging the “retaliation” provisions in the new rules that give rise to the threats to routine drug testing programs. These plaintiffs have sought a preliminary injunction against the Department’s new rule, found here, largely predicated on the original August 10 enforcement date. Given the Department’s recent track record before the federal courts, (see a recent preliminary injunction against the Department here), the delay in enforcement may well be designed to allow the Department additional time to fight the attempt to enjoin the new rule.
- Who Does this Concern? OSHA’s new regulations are not applicable to most private sector employers in states such as Alaska, California, Minnesota, Oregon, Utah or Washington that have adopted their own state workplace safety plans. While the state plans must be ‘at least as effective’ as OSHA’s rules, many of the state plan states have their own reporting requirements.
- Timeframe. As we saw when OSHA last changed its reporting requirements in 2014, as can be seen here, for those states with their own workplace safety plans it sometimes takes months (or years) to respond to changes in OSHA’s regulations. Employers outside those states, which are directly regulated by OSHA, now have until at least November 1 to prepare.
We will keep you abreast of these ongoing developments. In the meantime, please check back to our World of Employment blog regularly for updates or contact your Stoel Rives relationship partner for additional information.