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New OSHA Rule May Penalize Employers Who Routinely Conduct Post-Accident Drug Testing
Tuesday, August 23, 2016

For many employers, post-accident drug testing has become routine. Through such testing, employers seek to enhance workplace safety and reduce workers’ compensation claims. A recent “anti-retaliation” rule issued by the U.S. Occupational Safety and Health Administration (OSHA) on May 12, 2016, however, calls into question the wisdom of continuing to use blanket post-accident drug testing. 

New Limits Intended to Promote Workplace Injury Reporting

OSHA’s new rule ostensibly is designed to promote timely reporting of workplace injuries and protect reporting employees against retaliation. At the same time, the rule makes clear that employer drug testing programs used in cases where an injury is unlikely to have been caused by drug impairment and where the test applied cannot measure such impairment will be subject to scrutiny as retaliatory. If deemed retaliatory, OSHA can levy fines against the employer. 

Under the rule, by August 10, 2016, employers must have established “a reasonable procedure” for employees to timely report work-related injuries and illnesses. The rule prohibits the reporting procedure from deterring or discouraging an employee from accurately reporting a workplace injury or illness. The rule also prohibits employer retaliation for an employee’s reporting of an injury or illness and contains a built-in bias that post-incident drug testing deters such reporting. Specifically, it bars any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” OSHA states that “blanket post-injury drug testing policies deter proper reporting” and concludes that such drug testing may constitute an “adverse employment action.” Unless an employer “limit[s] 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,” the employer faces OSHA scrutiny and potential penalties.

According to OSHA:

“Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

OSHA states that only testing where drug use likely contributed to the accident and that accurately tests for impairment will be immune from enforcement action under the new rule:

“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. 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.”  

Potential Fines Increased Significantly

Based on a finding that a drug testing policy deters employees from reporting injuries and illnesses, OSHA presently may levy penalties up to $7,000 per violation. For willful violations, penalties up to $70,000 may be levied. These amounts are expected to increase to as much as $12,471 and $124,712, respectively, in August 2016.

Employer Take-Aways: Post-Accident Drug Testing Policies

Blanket post-accident testing policies should be reviewed. Employers with blanket post-incident or post-accident drug testing policies may need to defend a decision to test an employee based on the facts of the incident or accident. While courts have yet to weigh in on OSHA’s rationale that a drug test, standing alone, is a form of an “adverse employment action,” employers should exercise caution when considering administering such tests. 

It is prudent for employers to review blanket drug testing policies in order to minimize scrutiny by OSHA. Post-accident drug testing might be advisable only in those instances where it appears that drug use caused or contributed to the accident and where the test used can establish impairment. Employers may well have cause to stand by a blanket policy, but if such a position is taken, the employer should document the rationale for keeping the policy in light of this new rule (e.g., the policy is part of a workers’ compensation carrier’s guidelines or is in response to other considerations that show the policy does not deter reporting of work place injuries and is not retaliatory). 

Compliance with federal or state law may protect an employer. OSHA acknowledges that an employer who conducts drug testing in order to comply with federal or state law will not be considered in violation of the rule, because the employer’s motivation is not retaliatory. For example, U.S. Department of Transportation (DOT) regulations mandate the use of urine drug tests following accidents, but these tests do not measure impairment, only the presence of drugs in the system. OSHA suggests that an employer following such regulations would not be deemed to be acting in a retaliatory manner. 

Choose drug tests and testing options carefully. Unlike alcohol-related testing, where there is general agreement that reliable tests exist to measure impairment, most drug tests confirm only recent drug use but do not necessarily measure whether the employee is impaired. As such, even where recent drug use is known or suspected, it may be difficult to show that the employee was impaired by drug use at the time the event occurred. With that in mind, employers may choose to utilize drug tests that measure only very recent use or may choose to increase their use of random drug testing in lieu of post-accident drug testing in order to discover drug use before an accident occurs. 

But There’s More: Electronic Submission of Recordable Injury and Illness Data

OSHA’s anti-retaliation rule is embedded in its new electronic-reporting rule requiring the submission of recordable injury and illness data electronically. OSHA spends little time discussing the reporting rule in its preamble. However, the electronic reporting aspects of this “omnibus” rule are effective January 1, 2017 (versus August 10, 2016 for the drug test aspects), and also have broad implications for employers. To help businesses better understand these additional obligations, the electronic submission requirements will be discussed in a subsequent article. 

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