New OSHA Rule Creates Concern for Employers’ Drug and Alcohol Testing Policies

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Blank Rome LLP As we reported in May 2016, OSHA recently published a rule that phases in new requirements for employers. Certain portions of the rule that protect employees against retaliation for reporting injuries and illnesses are giving employers significant cause for concern regarding what had previously been fairly “routine” drug and alcohol testing policies. Although these provisions become effective on August 10, 2016, OSHA recently announced that it would delay enforcement until November 1, 2016, to conduct additional outreach and provide guidance to employers. Employers should take advantage of the additional time now to dig out and review their policies.

OSHA’s mandate that employers not retaliate against employees for reporting work-related injuries and illnesses is not new. What OSHA seeks to clarify and reinforce in its new rule, however, is that an employer’s procedure for employees to report work-related injuries and illnesses must be reasonable and not deter or discourage employees from such reporting. Although the rule itself does not mention drug or alcohol testing, OSHA’s commentary and guidance clarifies its enforcement position that workplace testing policies must be carefully designed and implemented so as not to discourage employee reporting and that “blanket” post-injury or incident testing policies—requiring employees to submit to drug and/or alcohol testing following any accident or incident—deter reporting.

Rest assured: the rule does not prohibit employers generally from using drug or alcohol testing or the threat of testing. However, OSHA believes that policies should limit post-accident and 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” (i.e., very recent drug use). For instance, drug testing an employee who suffered an injury caused by a machine malfunction would not, in OSHA’s view, be reasonable and, rather, would likely deter reporting. Employers do not need to specifically suspect drug use before testing, but according to OSHA, there should be a reasonable possibility that drug use contributed to the injury or illness. Otherwise, employers who test employees following any accident or incident risk significant monetary penalties. OSHA recognizes that some federal and state laws, including laws regulating transportation and workers’ compensation, require drug testing in certain instances; such testing to comply with legal requirements is not perceived to be problematic or retaliatory.

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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