One of the most common matters that we assist our clients in understanding is the set of legal parameters under which an employer can conduct employee drug and alcohol testing. For a variety of reasons, we encourage employers to conduct testing, including pre-employment testing, for-cause testing, post-accident testing and others. While there may be moral considerations at play for some employers, the truth is that there are a number of legal reasons why an employer is best served to screen out employees that may be working while impaired by illegal drugs or alcohol. These include a general duty to protect employees from foreseeable harm, an effort to prevent workplace accidents and injuries, an effort to control workers’ compensation premiums or unemployment costs, and others. And that doesn’t even touch required testing for Department of Transportation-regulated employers. For Oklahoma employers, the Oklahoma Standards for Workplace Drug and Alcohol Testing Act gives employers the right to test in all of these circumstances, and more.

OSHA to limit employer’s post-accident testing rights

But recent action by the Occupational Safety and Health Administration may now limit an employer’s right to conduct post-accident testing. Back in May, OSHA published its new rule regarding the reporting of workplace injuries and illnesses. The rule was designed to place even more emphasis on an employer’s obligation to make sure employees are reporting workplace injuries and illnesses. The new rule emphasizes that the procedures employers put in place to facilitate the reporting of incidents must be designed in a way that will not discourage employees from making those reports. But, along with the publication of the rule, OSHA provided some written commentary that is causing some considerable concern for employers that conduct post-accident drug testing. According to 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.

The commentary continues by setting forth the standard that OSHA will use in the future to evaluate improper workplace testing in a post-accident setting:

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.

Rule imposes virtually impossible standard for employers

This standard creates two significant hurdles for employers that desire to conduct post-accident testing for drugs or alcohol. First, the incident must be one in which drug use is likely to have contributed to the incident. No guidance is offered to assist employers in meeting this test, but some examples are provided. In that vein, OSHA provides:

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.

Reasonable minds might disagree with the cavalier conclusions that are offered by OSHA in the preceding sentence. It is not difficult to imagine a circumstance in which a bee sting might have been prompted by impairment, and it is certainly possible that an employee injured while impaired might not be truthful in his explanation that “tool malfunction” caused his recent injury. Nonetheless, the standard makes clear that OSHA would prohibit testing in those specific circumstances. But even if an employer has a reasonable basis to believe that drug use is likely to have contributed to the incident, the second hurdle in the standard is far more troublesome.

According to the standard offered in its commentary, OSHA believes that post-accident testing is only permissible when the test is designed to measure impairment, rather than simple use, of drugs. Unfortunately, few, if any, drug tests are designed to measure impairment. Rather, they simply measure the presence of drugs or alcohol in a given sample of blood or urine. The specific effect that the drug’s presence may have had on the individual is simply not measureable. That means, in effect, OSHA has articulated a standard that may be impossible for employers to meet. And importantly, the new rules set harsh penalties for any employer that it finds may have deterred the reporting of injuries, with knowing violations carrying a penalty of up to $125,000 each.

Motion for injunction filed

Not surprisingly, employer advocacy groups have responded with significant opposition. Earlier this month, a group of trade associations filed suit in the federal court for the Northern District of Texas seeking, among other things, an injunction that would prohibit OSHA from enforcing its newly announced prohibition on post-accident drug testing. While we won’t likely have any meaningful results from that suit for some time, we are monitoring that case and will share with you any news that develops.

Immediate next steps for employers

While the new rule is set to go into effect on August 10 of this year, OSHA just announced that it will delay enforcement until November 1, 2016. So, unless the federal court in Texas issues a preliminary injunction on its prohibition on post-accident drug testing between now and November 1, employers will need to take some fairly immediate action. First, employers need to re-examine the reasons behind their current post-accident testing policy. If that form of testing is not critical to operations, employers might consider eliminating that procedure altogether, focusing their safety efforts on less controversial pre-employment, for-cause, and random testing. Where post-accident testing is more crucial to an operation, the employer’s policy should be amended from a blanket, mandatory post-accident test, to a case-by-case approach, testing only under those circumstances in which drugs are “likely” to be a contributing factor. But employers that choose to continue post-accident testing must understand that the methods of their third-party testing vendors will become critical. If the tests used do not measure impairment, employers will be choosing to bear a significant risk.