Calfee, Halter & Griswold LLPOSHA Signals Forthcoming Pullback From Electronic Filing/Drug Testing Rule

July 27, 2017

The Obama era’s signature OSHA rule will soon be modified substantially, or possibly withdrawn altogether, per the Department of Labor’s own filings in two separate federal court cases challenging the rule. Federal district courts in Texas (June 30th) and Oklahoma (July 11th) granted government motions to stay all proceedings while the Department of Labor proceeds with rulemaking to “reconsider, revise, or remove portions of the prior final rule.”

The rule in question, of course, is the Recordkeeping Modernization Rule, also known as the Electronic Filing Rule, and termed in some quarters as the “Post-Accident Drug Testing Rule.” The Recordkeeping Rule requires that employers with 250 or more employees, and those with more than twenty employees in certain “high hazard” industries, submit their OSHA 300A injury and illness summaries on-line for the world to see. Equally if not more controversial is the provision that requires all employers to establish a “reasonable procedure for employees to report work-related injuries,” with the interpretation of “reasonable procedure” calling into question post-accident drug testing, safety incentive programs, discipline for safety violations, and “report all accidents immediately” policies. The rule took effect December 1, 2016, during the "lame duck" period of the Obama Administration.

For the time being, the Recordkeeping Rule remains law as the government has not modified or withdrawn it and no judge has ruled against it. Indeed, the federal judge in the Texas case previously denied a motion to preliminary enjoin the rule and let it go into effect last December 1st. Further, OSHA has established a web portal (expected to go live August 1, 2017) for electronically posting 300As; however, the deadline for posting them has been extended to December 1, 2017. Nonetheless, the enthusiasm of OSHA Area Offices and individual compliance officers to enforce a rule that may well be on the way out is questionable.

Employers still should proceed with caution. Drug testing in particular is subject to a myriad of state and federal laws independent of OSHA -- anti-discrimination laws (including disability discrimination), drug-free workplace requirements, workers’ compensation laws, laws governing union contract and employee handbook interpretation, federal transportation regulations, and the like. And simply firing an employee for reporting a safety concern to OSHA (and perhaps elsewhere) remains illegal as it always has and likely will continue to be regardless of who sits in the Oval Office. However, it would appear safe to reestablish “free pizza Fridays” and “safety bingo,” as this writer is not aware of any federal or state agency, other than OSHA, that takes a stand against employers rewarding their employees for an accident and illness free environment.

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