OSHA Final Rule – Electronic Recordkeeping & Retaliation Free Employee Reporting

Matt OlphinHuman Resources, Risk Management

Anti-Retaliation Provisions and Impact on Post Accident Drug Testing

Effective today – December 1, 2016, the anti-retaliation provisions of OSHA’s recent Electronic Recordkeeping final rule go into effect. The recent court challenge, brought by numerous companies and industry groups, to the anti-retaliation provisions of this final rule was not successful. The injunction blocking the anti-retaliation provisions from becoming effective today was denied. That does not mean the court challenge to this final rule was lost. We will continue to monitor the issue.

Perhaps the most hotly contested anti-retaliation provision is that OSHA may view blanket post-accident drug testing programs as retaliation against injured workers for reporting injuries. OSHA does not have issue with post-accident drug testing when required by law, e.g. DOT requirements for truck drivers.

This Should Not Be Seen as Blanket Prohibition on Post-Accident Drug Testing

Employers should become familiar with when OSHA believes post-accident drug testing is not seen as retaliatory and then review their policies to determine if their post-accident drug testing program may be viewed as retaliatory by OSHA. Automatic and blanket post-accident drug testing requirements for all workplace injuries will likely be impacted the most.

What You Should Do

  • Know that it impacts only companies governed by OSHA
  • Be aware of this issue
  • Talk to your Risk Control or HR Solutions consultants
  • Go to https://www.osha.gov for more information
  • Work with industry groups such as ABC, NAM, ASSE, SHRM, PMTA for help and guidance
  • Compare your current post-accident drug testing policy against the new OSHA final rule language
  • Seek legal council to review your current post-accident drug testing policy


If you have questions please contact:

Matt Olphin, CSP, ARM, Vice President, Risk Control Services at molphin@murrayins.com or

Debra Franklin, Esq., SPHR, Vice President, HR Solutions at dfranklin@murrayins.com.

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