Powerful New OSHA Rule Challenges Post-Accident Drug Testing
Even well-intentioned regulations sometimes have unintended negative consequences. Such is the case with new Occupational Health and Safety Administration (“OSHA”) regulations on electronic reporting of workplace injuries. For a long time, it has been “common sense” practice for employers to enforce post-accident drug testing after the occurrence of a workplace injury.
Effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries. That procedure cannot deter or discourage employees from reporting a workplace injury.
So how does this conflict with “common sense” policies that exist today? Like many things, the devil is in the details, and this case requires that the reporting procedure cannot deter or discourage employees from reporting a workplace injury.
Post-Accident Drug Testing
The final wording in 29 CFR 1904 essentially requires employers to electronically submit incident reports on workplace injuries that they are already required to keep under current OSHA regulations. But they had to go and tack on that last phrase, potentially challenging the legality of post-accident drug testing.
So the well-intentioned part – that’s easy! Depending somewhat on the size and industry of the employer, all employers are now required to inform employees of their right to report work-related injuries and illnesses free from retaliation, clarify that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting, and incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. So that’s all good stuff, right?
That should all encourage reporting and increase transparency to work-related injury claims. So why doesn’t it? The comments to the final rule expressly address that subject and explain that “blanket post-injury drug testing policies deter proper reporting.”
According to OSHA, substantial data supports their position that many workers have been deterred from reporting injuries to their employer because of their employer’s post-accident drug testing policy. The comments further explain that an appropriate post-injury drug testing policy must be limited to situations where “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”
OSHA emphasized that the intent of the final rule is not to ban all post-injury drug testing but to require employers to “strike the appropriate balance” by “limit[ing] 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.”
How to Stay Compliant
We advise our clients to review their current policies with counsel in light of 29 CFR 1904. Companies whose policy requires mandatory drug and alcohol testing after the report of a workplace injury should consider revising their policy to limit its application to situations where there is a “reasonable possibility” that drug or alcohol use contributed to the injury, for example. If you need further cause to revisit your policy related to workplace injuries, consider this - failure to comply with OSHA’s new rules could result in severe penalties, including $12,000 per violation and up to $120,000 fines for willful or repeat offenders.
In the world of compliance, even well-intentioned policies and regulations can have consequences not considered, and even the most seemingly uncontroversial policies can become potential pitfalls for the unwary employer.
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