New OSHA recordkeeping rules on drug testing

Enforcement of federal OSHA's anti-retaliation provisions of its new recordkeeping rule went into effect in early December after surviving a court challenge. Oregon OSHA will implement its version of these rules effective May 1, 2017.

The primary concerns from the business community center on language that "prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses." Oregon OSHA is currently working on educational materials to help clarify the rules and the anti-retaliation measures.

Michael Wood, administrator for Oregon OSHA, said, "We delayed the initial effective date, in part, to provide more education on the requirements and to provide greater clarification about the incentive pieces. The key, for me, is that if employers avoid a policy that does post-accident drug tests only, and only for injured workers (rather than for others who may have contributed), and for all injuries regardless of whether there is a nexus with the event and possible drug impairment, then they should be fine. Oregon OSHA will have clarifying/training materials out soon."

Wood has asked SAIF to help Oregon OSHA review its materials as they draft them, and we will do so with the intention of helping to provide additional clarity to a tricky topic. In the meantime, you can read more about the Oregon OSHA recordkeeping rule changes. The National Law Review also provided a good summary of the court ruling in Texas regarding the federal rule challenge.