OSHA delays enforcement of limitations on post-accident drug testing

by McAfee & Taft
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In previous articles, we discussed the Occupational Safety and Health Administration’s (OSHA) new rule regarding the reporting of workplace injuries and illnesses.

One part of the rule requires employers to electronically submit injury and illness data. This portion of the rule is set to go into effect on January 1, 2017.

Rule’s anti-retaliation provisions delayed

Another portion of the rule adds language to prohibit employers from retaliating against workers who have reported work-related injuries and illnesses. This anti-retaliation portion of the rule was initially set to go into effect on August 10, 2016. In light of a lawsuit filed in the Northern District of Texas, OSHA delayed enforcement until November 1, 2016. Recently, OSHA again delayed enforcement of the anti-retaliation provisions until December 1, 2016.

The anti-retaliation provisions of the final rule state that (1) an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage reasonable employees from reporting work-related injuries and illnesses; (2) employers must inform employees of their right to report work-related injuries and illnesses free from retaliation; and (3) employers must not discharge or discriminate against an employee for reporting a work-related injury or illness.

Rule’s effect on post-accident drug testing and safety incentive programs

One big issue for employers is what effect these anti-retaliation provisions have on routine post-accident drug testing programs and incident-based safety incentive programs. At one point, OSHA seemed to suggest that these programs would be considered retaliatory and therefore violate the new rule.

For example, in commentary to the new rule, OSHA stated that 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. Yet, as there are no generally recognized drug tests that can show actual impairment available to employers at this time, the ability of an employer to meet OSHA’s proposed standard is impossible.

OSHA memo clarifies new rule

On October 19, 2016, OSHA issued a memorandum explaining its position on the new rule in more detail. Specifically with respect to how the new anti-retaliation provisions apply to post-accident drug testing policies and employee incentive programs, OSHA clarified that in order for it to find an employer in violation of the new rule, OSHA must demonstrate the following elements:

  1. The employee reported a work-related injury or illness;
  2. The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
  3. The employer took the adverse action because the employee reported a work-related injury or illness.

Thus, regardless of whether an adverse action is taken pursuant to a disciplinary policy, post-accident drug testing policy, or employee incentive program, OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason. OSHA reminds employers that its analysis will be a fact-specific inquiry made on a case-by-case basis.

In this memorandum, OSHA also states that the new rule does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury reporting. The new rule only prohibits drug testing employees who report work-related injuries and illnesses when the employer has no objectively reasonable basis for doing so. In cases of drug testing, in order to find a violation, OSHA will have to find the three elements of retaliation stated above: a protected report of an injury or illness; adverse action; and causation.

When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, OSHA will focus on whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.

Importantly, OSHA clarifies that it will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.

The general principle OSHA aims to establish is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances. Moreover, OSHA makes clear that drug testing conducted pursuant to state workers’ compensation laws or other state or federal law is not a violation of its new rule.

Takeaway for employers

The OSHA memorandum boils down to this: Not all post-accident drug testing will be considered retaliatory or unlawful. OSHA must make a fact-specific inquiry to determine if an employer has violated the new rule. If an employer has an objectively reasonable basis for testing and applies its post-accident testing policy consistently, it could survive the scrutiny of the new rule.

We will keep our eyes on the Northern District of Texas lawsuit and advise of any further developments. However, do not wait until December 1, 2016, to determine whether your policies, including post-accident drug testing, comply with OSHA’s final rule.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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