UPDATE: OSHA delays enforcement of contested 'anti-retaliation' rule
UPDATE: OSHA announced Wednesday that it will delay the start date for enforcing the "anti-retaliation" provision of its new injury reporting rule from Aug. 1 to Nov. 1. The agency said in a news release that it decided to delay the provision in order "to conduct additional outreach and provide educational materials and guidance for employers."
- The Associated Builders and Contractors, along with other industry organizations, filed a legal challenge on July 8 to block the August implementation of "anti-retaliation" provisions in OSHA's new electronic recordkeeping rule.
- The new rule limits post-accident drug and alcohol testing, due to the fact that OSHA believes these tests are an invasion of privacy and will likely keep employees from reporting workplace accidents or injuries.
- The rule effectively eliminates post-accident drug testing unless, according to OSHA commentary, "employee drug use is likely to have contributed to the incident, " law firm Littler reported.
According to Littler, an employer who subjects employees to routine post-accident drug testing, without drugs or alcohol being a likely cause of the accident, exposes itself to OSHA penalties.
In a release, ABC Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore said "it’s inconceivable" that OSHA would seek to limit this kind of testing as part of post-accident investigations, as it is a tool in determining the cause of such incidents and key to preventing future injuries.
Another industry concern regarding the new rule is that all injury data will be made public. Construction companies with between 20 and 249 employees must send data from OSHA Form 300A to the agency electronically, and all employers with 250 or more employees must also report data from Forms 300 and 301. Industry groups maintain that making the injury information public will provide only one aspect of a company's safety history and culture and will expose private information.
However, OSHA said making the data public is intended to "nudge" companies into creating safer workplaces and said employers should consider this a chance to show the public, investors and other stakeholders how safe they are. The agency also said it could utilize the information in developing its own enforcement and compliance programs.
- Associated Builders and Contractors ABC Challenges Anti-retaliation Provisions of OSHA’s Electronic Reporting Rule
- Littler OSHA’s New Electronic Accident Reporting Rule Seeks to Dramatically Impair Post-Accident Drug and Alcohol Testing
- Construction Dive NAHB, industry groups sue Labor Dept. and OSHA over recordkeeping rule
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