In May, the Occupational Safety and Health Administration[1] (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses (see previous post for more detail).  The new rule enhances an employer’s obligation to ensure that employees report work-related injuries and illnesses. 

Reporting procedure deadline - August 10, 2016

By August 10, 2016, employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately.  As a part of the reporting obligation, the rule prohibits an employer from deterring or discouraging an employee from accurately reporting a workplace injury or illness.  The rule also prohibits retaliation for reporting an injury or illness. 

Under this new reporting standard, employer policies that request or require post- accident drug or alcohol testing may face scrutiny by OSHA because the agency claims that post-incident testing deters injury reporting.  Nothing in the final rule refers to drug testing; however in the commentary, OSHA previews its enforcement position on post-accident testing policies. According to the 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.

It will be relatively easy for an employer to establish guidelines to determine whether drug or alcohol use could have caused the accident.  However, now the employer has two steps.

1. The employer must establish that drug use likely contributed to the accident. 
2. The test must somehow determine that the employee was impaired.  To be immune from enforcement action under the new rule OSHA says:

. . .the final rule 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.  To strike the appropriate balance here, 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.  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.  

If you have post-accident drug testing, consider:

• Tighten your drug testing policy to tie referrals for post-accident testing to situations where it appears an employee caused or contributed to the accident. Alternatively, abandon post-accident testing in favor of reasonable suspicion testing. 

If an employer maintains a blanket policy of testing employees after each accident, the employer should be prepared to defend that decision through reference to workers’ compensation programs, safety considerations, state or federal requirements or any other means that will establish the program does not deter reporting of injuries and does not constitute retaliation for reporting a specific injury.

• Use tests that measure only very recent drug use. While there are reliable tests to measure alcohol-related impairment, drug tests measure only recent drug use.  Although the presence of illegal drugs in an individual’s system may very well reflect impairment, employment drug tests are not designed to measure impairment.  Therefore, even if an employer carefully adopts a program that calls for a post-accident drug test only where it appears that an employee’s acts, or failure to act, has caused or contributed to an accident; it may be more difficult to show that the individual was, in fact, impaired by the drug.

OSHA concedes that an employer which conducts drug testing to comply with the requirements of a federal or state law or regulation will not be considered in violation of the rule, because the employer’s motive in conducting testing is not retaliatory.  Therefore, employers who must conduct post-accident testing – pursuant to U.S. Department of Transportation regulations, for example – should continue to do so, despite the fact that the DOT’s testing program mandates the use of urine drug tests, which do not measure impairment.

OSHA’s commentary does provide examples of what it considers to be unreasonable testing--where an employee reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  Employers should heed these guidelines in revision of their workplace accident and illness policies and be prepared to substantiate the basis for testing when a workplace incident results in drug testing. 

Incentive programs    

In the same guidance, OSHA condemns employer safety “incentive programs” as form of retaliation.  This position is consistent with OSHA’s past rulings and guidance on employer incentive programs, but goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program.  The new rules explain that “it is a violation of paragraph (b)(1)(iv) for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program.”  OSHA’s interpretation prohibits all programs in which employees are denied a benefit on the basis of any injury or illness report.  For example, if an entire shift loses a safety bonus due to a single employee being injured.

However, an incentive program may make a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses.  OSHA further encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or “near misses.”  Accordingly, employers should consider OSHA’s new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on the reporting of injuries or illnesses.  These types of programs could be adjusted to provide benefits on the basis of compliance with safety rules, or for attending safety trainings or persevering on safety quizzes.

Bottom line

By August 10, 2016, employers need to:

• Review and update their drug testing policies if they do post accident testing
• Eliminate or drastically revise any safety “incentive program”
• Communicate an employee’s right to report without fear of retaliation.

If you have any questions on how to do this, please contact your employment attorney.