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Associated Builders and Contractors (ABC) are taking issue with new rules it claims will restrict drug and alcohol testing after work-related accidents.

The new guidelines, which came from the Occupational Safety and Health Administration, are meant to prevent retaliation by employers who would use the drugs tests as unspoken leverage against workers making injury and illness claims.

The ABC, along with TEXO and a number of other stakeholders, filed suit last week in the U.S. District Court for the Northern District of Texas against OSHA’s final rule related to tracking workplace injury, according to information from the ABC. The suit seeks to prevent provisions from the final rule on Tracking of Workplace Injuries and Illnesses from going into effect on Aug. 10.

“Associated Builders and Contractors is committed to working with our members and OSHA to create safe construction work environments,” says Greg Sizemore, ABC Vice President of Health, Safety, Environment and Workforce Development. “But it’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

Language in the rule expands on the rationale for creating the new guidelines. According to information from OSHA, not every type of workplace injury creates a reasonable justification for subjecting an employee to a drug test.

“For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction,” the rule reads. “Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety.”

It goes on to point out that while employers should not necessarily suspect drug use prior to testing, there must be a “reasonable possibility” drugs were a contributing factor in a reported incident. A statement from OSHA states the new policy “targets employer programs and policies that, while nominally promoting safety, have the effect of discouraging workers from reporting injuries and, in turn [lead] to incomplete or inaccurate records of workplace hazards.”

“In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting,” the OSHA ruling reads.

The ABC has been vocal about its concerns through the rule drafting process. It participated in a public meeting in January of 2014 and submitted comments in March and October of that year expressing trepidation about the rule.

Other plaintiffs in the lawsuit include American Fuel & Petrochemical Manufacturers, Atlantic Precast Concrete Inc., Great American Insurance Company, National Association of Manufacturers, Owen Steel Company and Oxford Property Management LLC, according to a release from the ABC.

Read the full rule from OSHA.

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