New OSHA Rule May Affect Drug Testing Policies

Many substance abuse policies expressly provide for post-accident drug testing. This requirement often flows from an employer’s commitment to a safe, drug-free workplace. In addition, most states do not require an employer to honor a worker's compensation claim brought by an employee whose drug or alcohol impairment caused a workplace injury.

The Occupational Safety and Health Administration, however, issued a final rule on Aug. 10, 2016, that may cause employers to rethink a policy requiring the testing of every employee involved in an accident. The regulation is contained within OSHA’s “Improve Tracking of Workplace Injuries and Illnesses Rule,” which focuses principally on new electronic reporting requirements that begin in 2017.

OSHA’s rule focuses on ensuring that workers report work-related injuries and illnesses. Accordingly, in the final rule, OSHA requires that employers “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” “A procedure is not reasonable,” the rule provides, “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

OSHA’s final rule does not, by its terms, deal expressly with drug testing policies. In the comments to the rule, however, OSHA observes that “blanket post-injury drug testing policies deter proper reporting” of workplace injuries. To be sure, an employer has a legitimate interest in testing employees when there is a “reasonable possibility that drug use might be a contributing factor to the reported injury,” but such a reasonable possibility is not evident in all cases.

OSHA makes clear that its goal is not to eliminate all post-accident testing, but instead to require employees to “limit post-incident drug testing to situations in which 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 final rule does not ban drug testing, but it does prohibit employers from using drug testing or the threat of drug testing as a form of adverse action against employees who report injuries or illnesses. As examples in the rule make clear, a “bee sting, a repetitive strain injury or an injury caused by lack of machine guarding” do not provide cause for drug testing.

The comments state that “employers need not specifically suspect drug use before testing but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.” Exactly how employers are supposed to ascertain this “reasonable possibility” is left unclear. OSHA is working on a Compliance Directive for its inspectors and preparing a white paper that will hopefully answer some of these questions.

The new regulation has some teeth. Each violation carries a maximum $125,000 penalty, and discharged employees can recover back pay and be reinstated.

Although this rule became effective on Aug. 10, 2016, OSHA has explained that it will not enforce the rule until Nov. 1, 2016. Meanwhile, a group of trade associations has filed suit in an effort to stop OSHA from enforcing its newly announced policies concerning post-accident testing.

Employers should take the opportunity presented by this delay in enforcement to revise their policies to avoid unnecessary OSHA scrutiny. Blanket policies should be amended. In addition, employers should ascertain from their drug-testing vendors whether their procedures provide relevant information concerning an employee’s impairment at the time of the accident. If they do not, those procedures should be modified or reconsidered.

Contact a member of Robinson Bradshaw’s Employment and Labor Practice Group for more information.