At least one construction industry group is pleased that the Dept. of Labor has issued new guidance on complying with its new injury and illness record-keeping rule’s anti-retaliation provisions that relate to drug testing. Dept. of Labor new guidance, issued on Oct. 19, clarifies its position on post-incident drug testing when an injury or accident occurs on a jobsite.
The guidance apples to a final rule that Dept. of Labor’s Occupational Safety and Health Administration released on May 12. The regulation said that drug testing after a workplace injury or accident could unfairly stack the deck against employees.
The Labor Dept. said that rule and its new reporting requirements are intended to “nudge” employers to improve their workplace safety and health programs. It requires companies’ injury and illness track records to be posted publicly.
Critics, which include several construction industry groups, contend that the rule could have the unintended consequence of reducing safety at workplaces.
Representatives of the Associated General Contractors of America met with OSHA officials on Aug. 30 to discuss how, in AGC’s view, the rule would prevent employers from accurately identifying the causes of some accidents when drug use is involved.
In OSHA’s October guidance document to regional administrators, Dorothy Dougherty, a deputy assistant secretary for occupational safety and health, said it will not issue citations for post-incident drug testing that complies with state workers’ compensation laws—no matter if such testing is mandatory or voluntary under a state’s law.
However, Dougherty also said drug testing for injuries that could have causes other than drug use, such as a repetitive-strain injury, probably would violate the record-keeping rule.
“Generally speaking, the new guidance is more likely than [OSHA’s] previous position to allow for—and not overly restrict—many construction companies’ existing policies regarding employee post-incident drug testing,” Brian Turmail, AGC senior executive director of public affairs, said in an email.
An OSHA spokeswoman said the agency had no immediate comment on the guidance.