Earlier this month I wrote a post called Safety Incentive plans are now a thing of the past! In that post I told you about a number of issues that OSHA now considers acts of retaliation by employers, and as we all know retaliation is against the law. One of these acts of retaliation is automatically conducting post-accident drug testing of injured employees. I wanted to explore this in a bit more detail.
The new rules on reporting, which contain this anti-retaliation provision, go into effect on August 10, 2016, However, the enforcement of the anti-retaliation standards to do not go into effect until Nov. 1, 2016. According to attorneys Peter Stuhldreher and Mark Temple of Reed Smith, OSHA’s position is that post-accident drug testing could deter injury reporting. They quote OSHA’s guidance which says:
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.
OSHA also says:
The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing…. 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.
Accidents caused by a bee-sting, poor machine guarding, repetitive motion, or machinery malfunction are not injuries that would require or prompt drug testing. In fact OSHA says 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.”
Post-accident is no longer sufficient
A post-accident drug test, a standard operating procedure in many companies, is no longer acceptable. You have to suspect the employee was impaired and you have to think that this was a contributing cause to the accident. If you did not, and then tested the employee and found out the employee was using, you would be engaging in a retaliatory act that could result in heavy fines for the employer. In the preamble to the 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…. 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.”
According to an article in the National Law Review, this ruling goes counter to several Supreme Court decisions and is likely to be challenged.
However, in the meantime since the rules are effective August 10, 2016 all employers need to revisit their drug testing policies. You might seek some help from your drug testing provider on how to best revise your policies or follow the advice of the attorneys from Reed Smith:
Given OSHA’s new guidance related to drug testing, employers should consider expressly limiting the application of post-accident drug-testing policies. Additionally, since employers may be able to accomplish the same objectives through random and reasonable-suspicion drug testing, employers may consider removing post-accident drug testing from their policies.