The rule effectively eliminates post-accident drug testing unless, according to OSHA commentary, "employee drug use is likely to have contributed to the incident," law firm Littler reported.   

According to Littler, an employer who subjects employees to routine post-accident drug testing, without drugs or alcohol being a likely cause of the accident, exposes itself to OSHA penalties.

In a release, ABC Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore said "it’s inconceivable" that OSHA would seek to limit this kind of testing as part of post-accident investigations, as it is a tool in determining the cause of such incidents and key to preventing future injuries.

Another industry concern regarding the new rule is that all injury data will be made public. Construction companies with between 20 and 249 employees must send data from OSHA Form 300A to the agency electronically, and all employers with 250 or more employees must also report data from Forms 300 and 301. Industry groups maintain that making the injury information public will provide only one aspect of a company's safety history and culture and will expose private information.

However, OSHA said making the data public is intended to "nudge" companies into creating safer workplaces and said employers should consider this a chance to show the public, investors and other stakeholders how safe they are. The agency also said it could utilize the information in developing its own enforcement and compliance programs.

Sources: Associated Builders and Contractors: Littler: OSHA’s New Electronic Accident Reporting Rule Seeks to Dramatically Impair Post-Accident Drug and Alcohol Testing.