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OSHA Questions Post-Accident Drug Testing Policies

on Monday, 18 July 2016 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule on electronic reporting of workplace injuries and illnesses. In addition to other requirements, the final rule requires employers to implement reasonable procedures to ensure that employees report work-related injuries and illnesses. In the process, OSHA expressed its distaste for post-accident drug testing policies. While the final rules do not address post-accident drug testing through a specific provision, OSHA’s comments accompanying the final rule may substantially affect how employers conduct post-accident drug testing. Specifically, OSHA stated that:

“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 concludes that blanket post-accident drug testing policies deter proper reporting of workplace injuries or illnesses because people may be afraid to report an accident if they believe they will be drug tested. OSHA states that drug testing programs need to be carefully developed and implemented to ensure that employees are not discouraged from participating in injury and illness reporting programs.

Notably, OSHA’s commentary does not ban drug testing of employees, nor does it ban all post-accident drug testing. Rather, it merely clarifies that post-accident drug testing should be limited to situations where employee drug use is likely to have contributed to the incident, and when the drug test can accurately identify impairment caused by drug use. For example: if an employee reports a bee sting, a repetitive strain injury, or an injury caused by lack of machine guarding or machine or tool malfunction, a policy requiring that employee to take a drug test would be unreasonable.

While employers do not need to specifically suspect drug use as a prerequisite to testing, there should be a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness before requiring drug testing.”

Additionally, employers conducting drug testing pursuant to federal and state law or regulations are not affected by this rule because employers’ motive in those instances would not be retaliatory (statutorily, OSHA may not supersede or affect workers’ compensation laws).

Recent Developments

On July 8, 2016, a group of employers and employer groups filed suit in a federal court in Texas challenging OSHA’s authority, including its authority to limit post-accident drug testing. The plaintiffs in the case filed for a preliminary injunction to prohibit OSHA from implementing the challenged aspects of the final rule.

Effective Date and Next Steps

Absent a court injunction, OSHA’s new rule was originally slated to go into effect on August 10, 2016. However, OSHA just announced that it will delay enforcement of the rule until November 1, 2016. Employers who conduct post-accident drug testing should review their policies and revise them to align with OSHA’s commentary. Policies that impose automatic drug tests after an accident, or those that impose automatic tests for employees reporting work-related injuries or illnesses, should be narrowed to circumstances where the company cannot rule out drugs/alcohol as a contributing factor for the incident.

Kelli P. Lieurance

Sean T. Nakamoto

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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