Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32OCTOBER 2016 • FOGHORN 23 LEGISLATIVEREPORT New Rule: Coast Guard-Required Drug Testing A controversial aspect of the new rule has to do with post-accident drug testing. The rule itself does not address whether or not a company can require an injured worker to undergo a drug test, but it does have provi- sions designed to prevent actions by an employer that deter an employee from reporting accidents and injuries. In an explanation accompanying the final rule, OSHA states that “OSHA believes the evidence in the rulemak- ing record shows that blanket post-in- jury drug testing policies deter proper reporting…. Drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” Employers have expressed alarm about this interpretation, worrying that it may sound the death knell for mandatory post-accident drug testing policies. Several employers have already gone to federal court seeking an injunction against this provision of the new rule. Feeling the political heat, OSHA has delayed enforcement of this part of the rule until November 1. It has posted the following statement on its web page: “The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retal- iatory and this rule would not prohibit such testing.” What does this all mean for a vessel operator who is required by Coast Guard rules to conduct drug testing of a crew member after a marine casualty? For clarification, PVA reached out to Mr. Patrick Mannion of the Drug and Alcohol Prevention Program at Coast Guard Headquarters. He replied, “The EASY MANEUVERABILITY Give your passengers a smooth ride with reliable John Deere PowerTech™ propulsion and generator drive engines. With high torque and low-rated rpm, they deliver excellent vessel control and quiet operation. For easy navigation on the water — Nothing Runs Like A Deere™. JohnDeere.com/marine 60 to 559 kW (80 to 750 hp) Coast Guard has been actively moni- toring this OSHA Rulemaking. The Coast Guard has been working … to ensure that DOT/USCG require- ments for post-casualty chemical testing would not be impacted by this OSHARulemaking. OSHA’s Final Rule contains exclusions for any chemical testing of employees required by other federal law or regulation…. Specifically, in the Preamble section [the new OSHA rule] states: If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. So then, marine employers will continue to be required to conduct 46 CFR Part 4 and Part 16 post-casualty drug and alcohol testing of crewmem- bers directly involved in a serious marine incident.” n