Even well intentioned regulations at times have negative unintended consequences.  And 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 become “common sense” common practice for employers to enforce drug and alcohol 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, and that procedure cannot deter or discourage employees from reporting a workplace injury.   So how is this in conflict with “common sense” policies that exist today?  Well, like many things the devil is in the details and in this case the requirement that the reporting procedure can not deter or discourage employees from reporting a workplace injury.

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 which potentially challenges the legality of drug and alcohol testing post-accident.

So the well intentioned part – well 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.  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-injury drug and alcohol testing policy.   The comments further explain that an appropriate post-injury drug and alcohol 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 and alcohol 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.”

We are advising 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 serious penalties including $12,000 fines per violation and up to $120,000 fines for willful or repeat offenders. 

In the world of compliance even well intention policy and regulations can have consequences not considered, and even the most seemingly uncontroversial policies can become potential pitfalls for the unwary employer.

 

J Rollins is the co-founder and CEO of ETHIX360.  At ETHIX360, our goal is simple, to provide an affordable, flexible and comprehensive answer to employee communication and case management on issues related to corporate ethics, code of conduct, fraud, bribery, EH&S and workplace violence.  To learn more about ETHIX360, please visit www.ethix360.com, or follow us on twitter @ethix360.