OSHA announced this month that it is clarifying, and effectively rolling back, portions of the injury and illness rule guidance it issued in 2016. The decision clarifies and walks back guidance that potentially penalized employers for certain drug testing policies and safety incentive programs.

In an October 11, 2018 memorandum to its regional administrators and state affiliates, OSHA’s new guidance focuses on two much-criticized aspects of the 2016 final rule. In that rule, OSHA added a provision prohibiting retaliation against employees for reporting work-related injuries or illnesses (29 C.F.R. § 1904.35).

However, in the preamble to that rule and subsequent guidance, OSHA also explained that it would consider employers to violate the rule when they conduct automatic drug testing of everyone involved in an accident, for example. It argued that doing so would discourage employees from reporting injuries (in order to avoid drug tests). Instead, OSHA said at the time that employers must have an “objectively reasonable basis for testing employees,” namely a “reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” The guidance was not particularly clear, but it strongly suggested that blanket drug-testing rules were assumed to be non-compliant. Click here to continue reading…

Credit: Avi Meyerstein, Husch-Blackwell

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