A mandatory drug and alcohol test after a workplace injury seems like a no brainer, right? Most companies believe so, which is why mandatory drug and alcohol testing after workplace injuries has become a common policy.  However, new Occupational Health and Safety Administration (“OSHA”) regulations on electronic reporting of workplace injuries cast doubt on the continued legality of such policies.  Specifically, OSHA’s new position is that mandatory post-injury testing deters the reporting of workplace safety incidents by employees and therefore employers who continue to operate under such policies will face penalties and enforcement scrutiny. In light of OSHA’s enforcement position, it is time for your company to review and revise its mandatory post-accident drug and alcohol testing policy.

Effective August 10, 2016,^[1] OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries, and that procedure cannot deter or discourage employees from reporting a workplace injury. The final rule, which amends OSHA’s regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904), requires employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. Even though the content of these submissions depends on the size and industry of the employer, all employers are now required to: 1) inform employees of their right to report work-related injuries and illnesses free from retaliation; 2) clarify that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and 3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

While the text of the new regulation does not mention post-injury drug and alcohol testing, the comments to the final rule expressly address that subject and explain that “blanket post-injury drug testing policies deter proper reporting.”^[2]  According to OSHA, substantial data supports their position that many workers have been deterred from reporting injuries to their employer because of their employer’s post-injury drug and alcohol testing policy.^[3]  The comments further explain that an appropriate post-injury drug and alcohol testing policy must be limited to situations where “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”^[4]  OSHA emphasized that the intent of the final rule is not to ban all post-injury drug and alcohol testing, but to require employers to “strike the appropriate balance” by “limit[ing] 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.”^[5]

In light of OSHA’s new position on mandatory post-injury drug and alcohol testing policies, employers should review their policies to determine if they are compliant. If your company’s policy requires mandatory drug and alcohol testing after the report of a workplace injury, the policy should be revised to limit its application to situations where there is a “reasonable possibility” that drug or alcohol use contributed to the injury. You do not need to specifically suspect drug or alcohol use before testing, but there should be a reasonable possibility, based on clearly articulable facts, that drug or alcohol use by the reporting employee contributed to the reported injury or illness. Failure to comply with OSHA’s new rules could result in serious penalties including $12,000 fines per violation and up to $120,000 fines for willful or repeat offenders.

In short, the new OSHA rule provides yet another example of how in the world of employment law, even the most seemingly uncontroversial policies can become potential pitfalls for the unwary employer.

^{1. While the effective date of the new rule is August 10, 2016, OSHA has indicated that it will not enforce the new rule until November 1, 2016 to provide employers with time to review and revise their policies to conform to the new rule.}

^{2.  Occupational Health and Safety Administration, Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (codified 24 C.F.R. 1904).}

^3.  Id.

^4.  Id.

^5.  Id.