The United States Occupational Safety and Health Administration (“OSHA”) recently issued new rules aimed at discouraging employers from conducting blanket post-accident drug testing for non-DOT employees. OSHA states that its goal is to encourage the reporting of workplace injuries and illnesses by preventing employers from using post-accident drug testing as a retaliatory response.
Effective on August 10, 2016, the new rules require an employer to implement “a reasonable procedure” for employees to report workplace injuries and illnesses. The rules clarify that reporting procedures must not deter or discourage an employee from reporting an injury or illness. Further, an employer is not permitted to take adverse action that could dissuade an employee from filing a report.
In the commentary accompanying the rules, OSHA specifically identified blanket post-injury drug testing policies as potential deterrents and stated that such policies could constitute adverse action under the new rules. To eliminate the deterrent effect, OHSA stated that employers 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.”
OSHA now takes the position that employers should carefully consider the methods and types of tests they utilize. As the new OSHA rules make clear, tests that cannot accurately measure impairment may be deemed retaliatory. Interestingly, OSHA’s approach is at odds with the approach of another federal agency, the Department of Transportation (“DOT”). DOT mandates controlled substances testing of DOT covered drivers following certain accidents even though the results only establish whether the driver has used controlled substances and not whether the driver was impaired during the accident. Courts have not yet had an opportunity to weigh in on the validity of OSHA’s new approach. OSHA avoids dealing with the fact that its approach differs from DOT’s approach by including in the new rules an exception for employers who are required to test employees to remain in compliance with state or federal laws and regulations, including DOT regulations.
OSHA provided examples of what it considers to be unreasonable testing: if an employee reported a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding and/or a machine malfunction, a drug test is not likely to be reasonable. Notably, OSHA recently increased the potential fines it can levy upon an employer: fines for serious violations rose from $7,000 to $12,471, while fines for willful violations rose from $70,000 to $124,712.
Employers should review their post-accident drug testing policies and be prepared to justify the basis for testing after a workplace incident. Employers that decide to maintain blanket post-accident drug testing policies should document their rationale for doing so, such as a requirement from a workers’ compensation insurance provider.