Wednesday, July 13, 2016

Has OSHA Effectively Ended Post-Accident Drug Testing?

After August 12, 2016, Employers may have a tougher time conducting post accident drug testing. That’s the effective date of OSHA’s revised regulations on reporting accidents in the workplace.  According to OSHA, the new regulations are designed to encourage employees to report their workplace accidents and injuries and to deter intimidation or threats of reprisal for those reports. One such threat or intimidation, according to OSHA, is post-accident drug testing of employees. Simply put, OSHA believes that some employees won’t report workplace injuries for fear of being drug tested. 

Although a prohibition on this type of drug testing is not specifically contained in the new regulations, OSHA’s commentary accompanying the final rule clearly states its position on post-accident testing policies. According to the agency:

. . .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.  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.  

This presents two new challenges to the many employers who have policies which provide post-accident drug testing. First of all, the concept that drug testing is inappropriate if the injury or illness is “very unlikely” to be linked to employee drug use, offers little guidance to employers.  Unless or until the courts clarify this phrase, it leaves employers in peril or even unwittingly violating the rule.

Secondly, the commentary provides that the test itself may be inappropriate unless it tests for drug impairment at the time of the accident, rather than recent drug use.  This highlights an issue that has existed for some time. Most commonly used employer drug tests measure whether evidence of certain drugs is found in an individual’s system. That is fine if the corollary policy prohibits use of illegal drugs or prescription drugs above the prescribed level. This testing might conflict with the new OSHA rule because evidence of use of certain drugs, marijuana coming immediately to mind, linger in a person’s system long beyond the point when the effects of the drugs are  gone.  

OSHA’s penalties are steep. Currently, an employer can be assessed  up to $7,000 per violation or, for willful violations, up to $70,000.  These numbers will increase to as much as $12,471 and $124,712, respectively in August 2016.

One caveat in the rule exists for employees who are also regulated by other state or federal laws. In the case where other laws require post-accident drug testing, such as the Department of Transportation, those regulations will supersede OSHA’s rules.

So, what can employers do? As the agency and the courts sort out how to enforce the new rule, employers should reviewing their policies on post accident drug testing to determine whether they will likely run afoul of the new rule. Secondly, employers should consider relying, at least for the time being, on reasonable suspicion and random (if allowed) drug testing. This can apply to post accident situations as well. If the employer has reasonable suspicion to believe that an employee was under the influence at the time of an accident, for reasons other than the accident itself, then it may require reasonable suspicion drug testing.

As always, stay tuned to the Workplace Report for updates on implementation of this rule.