OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register. The OSHA rule has no impact on post-accident testing mandated by federal regulations or permitted by state workers’ compensation laws (e.g., premium reduction laws). The rule states that “[i]f an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.” However, post-accident drug and alcohol testing is unregulated in many states. OSHA intends to issue additional guidance concerning the new rule. Legal challenges to the rule also are anticipated. In the interim, employers who conduct post-accident drug and/or alcohol testing should review their policies to ensure that they are not conducting overly broad “automatic” post-injury testing that could be viewed as a deterrent to injury reporting by employees.
