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Uncharted Waters: OSHA’s Employee Rights Provision

Post Author Rob Loose
Aug 10, 2016 7:00:00 AM
Workforce Insights

In July, OSHA’s unpopular and long-anticipated new rule requiring employers to electronically submit injury data encountered unsteady waters with its final rule that threatens enforcement upon organizations that discourage employees from reporting injuries. You see, OSHA went so far as to deem most post incident drug screening unacceptable. According to OSHA, this practice deters employees from reporting injuries. Workforce drug abusers grinned and slow clapped after hearing this news! Everyone else is concerned and many outright disagree, so much so, that OSHA delayed the effective enforcement date to November 1, 2016. Could this be mutiny?

While OSHA scrambles to calm the unsteady waters and contrive additional explanation, what should the regulated community do in the meantime? The first thing to do is accept change and adjust to provisions that likely won’t go after it’s released in November, namely electronic record keeping and public visibility of workplace accidents. OSHA’s motive for enforcing this sort of visibility may be considered outdated and ineffective to savvy safety professionals but you can rest assured this new rule will happen. Refrain from denying change and prepare now to adjust to the new reporting requirements.

Secondly, an honest evaluation of your post incident drug screening practices is in order. In your evaluation, an important factor to examine is in what circumstances do you require a drug screen? Consider the difference between the following two examples. The first example involves an injury resulting from an operator that crashed a forklift. Could the operator be high (impaired)? Fair question and quite possibly so!  Better test that one. The second incident involves an associate that complained of a shoulder pain and you’ve been monitoring closely for several days? The latter example arguably has little to do with impairment and drug testing could be an overreach. Overreach, get it? Shoulder pain… Anyhow, do you now see - not asking if you agree - where OSHA could perceive retaliation for reporting?    

Foreshadowing future events, we’re headed into murky waters sailing in OSHA’s boat and they intend to nudge companies toward only testing for impairment post incident. Drug testing tools you now use for those aforementioned, carefully-selected incidences, will eventually be keenly scrutinized. Why, you may ask? The primary reason for drug testing post incident is to rule out impairment. In the future, if an employee fails a post incident drug screen and you administer punishment but you can’t prove he/she was impaired at the time of the incident, OSHA may find a reason to penalize you. Perhaps retaliation, who knows... Therefore drug testing tools that only detect traces of substances may be considered suspect by OSHA. Additionally, as you adjust to this new provision, you might as well tighten up your company’s substance abuse policy and bolster your random drug screening program. We’re sailing into uncharted waters!   

Come November 1, OSHA’s Employee Rights Provision will be issued in some version.  Does OSHA really care about being popular with the changes this provision forces? I doubt it. I gather they enact policy they perceive serves the interests of workers even at the expense of their own popularity. Employers must accept the changes and adjust even if, in the end, folks that choose to work while impaired now may have a policy to hide behind. We can only hope that these new requirements don’t thwart employers’ efforts to maintain drug-free workplaces. 

Have any more questions regarding this recent OSHA ruling or any other safety issues at your organization? Contact us today! Whether you have questions about your contract or direct workforce, we are here to help. 

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