Client Alert – OSHA Post-Injury Drug Testing

Employment Law Update

August 2016

The Occupational Safety and Health Administration (“OSHA”) recently published its final rule to “Improve Tracking of Workplace Injuries and Illnesses.”  While the stated purpose of the rule is to impose electronic reporting requirements on certain employers for purposes of recordable workplace injuries and illnesses, perhaps the biggest impact of the rule will be on post-accident drug testing.  The rule requires employers to establish a “reasonable procedure” to report work-related injuries and illnesses promptly and accurately.  The rule also mandates that such procedures may not deter or discourage employees from reporting a workplace injury or illness.  OSHA has concluded that blanket post-accident drug testing policies deter employees from reporting workplace injuries.  As a result, such a policy will now face heavy scrutiny and could result in a hefty fine if a policy is found to unreasonably deter employees from reporting workplace injuries and illnesses.

Although the final rule does not specifically mention drug testing, the preamble to 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-accident 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.  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.  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.  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.

OSHA’s commentary on the rule sheds some light as to the reasoning behind OSHA’s interpretation of the rule as it applies to mandatory post-accident drug testing policies:

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.

Based on OSHA’s stated intentions with regard to enforcement of the rule, employers should consider revising their post-accident drug-testing policies.  Post-accident drug testing policies that require testing after any accident should be narrowed in scope.  At a minimum, such policies should be limited to situations in which the employee actually caused or contributed to the accident.  Moreover, such policies should not require testing for repetitive use injuries such as carpal tunnel syndrome and injuries that are not tied to a specific event, such as back strains.  Alternatively, employers might consider abandoning post-accident testing altogether in favor of reasonable suspicion testing and an increase in random testing.  For employers who participate in the Ohio Bureau of Workers’ Compensation Drug Free Safety Program, however, this may not be a viable solution if the employer wishes to maintain eligibility in the program.

If OSHA finds that an employer drug testing policy deters the reporting of injuries and illnesses by employees in violation of the new rule, it may issue significant penalties for each such violation.  Currently, employers may face up to $7,000 in penalties per violation, or up to $70,000 for willful violations.  However, those penalties will increase substantially on November 1, 2016, which is the effective date of OSHA’s new rule, and could be as much as $12,471 and $124,712, respectively.

While the new rule, and particularly OSHA’s intended enforcement of the new rule, will likely result in legal challenges, for now it is an enforceable rule and OSHA is the agency in charge of enforcing it.  Thus, employers would be wise to review their policies and consult competent legal counsel to ensure that they will not be subject to substantial fines in the event of an OSHA audit.

If you have any questions or would like to discuss the above issues in more detail, please do not hesitate to contact Bryan Niemeyer, Certified Labor and Employment Law Specialist, Faulkner, Garmhausen, Keister & Shenk, A Legal Professional Association, at 937-492-1271 or bniemeyer@fgks-law.com.

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