Highlights

  • New regulations state that employers should limit post-accident drug testing policies to situations in which employee drug use is likely to have contributed to the incident.
  • OSHA concerned that stringent policies may deter injury reporting.
  • Incentive programs for accident-free days also discouraged, with employers being encouraged to focus on other safety indicators.

As you may be aware, in May of this year, the Occupational Safety and Health Administration (OSHA) published new regulations on discrimination and injury and illness reporting. These rules go into force on August 10, 2016 for all employers. While, on their face, these regulations appear to be merely an enhanced anti-retaliation provision for reporting injuries, there is more for employers to understand. OSHA is interpreting this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. OSHA further views incentive programs as retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.

Employers who have a policy requiring drug and/or alcohol testing following a work injury should review that policy given these changes. OSHA is recommending only narrowly tailored post-accident testing policies – testing where drug use likely contributed to the accident and that accurately tests for impairment. OSHA has stated that:

. . .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.

So, we are recommending to our clients that they review their drug testing polices to determine whether they have a blanket rule of required drug testing after any accident. Our suggestion is to either revise that policy to require testing only where it appears drug or alcohol use by the employee caused or contributed to the accident. In the alternative, companies can remove the policy and use purely a reasonable suspicion standard for all testing, whether following an accident or otherwise. OSHA does concede that an employer which conducts drug testing to comply with the requirements of a federal or state law or regulation will not be considered in violation of the rule, because its motive in conducting testing is not retaliatory. Therefore, employers who must conduct post-accident testing – pursuant to Department of Transportation (DOT) regulations, for example – should continue to do so, despite the fact that the DOT's testing program mandates the use of urine drug tests, which do not measure impairment.

The other issue raised in these new rules relates to incentive programs or rewards for accident-free days. Again, OSHA believes that these programs have a chilling effect on the reporting of injuries and that any such incentives should be based on other safety factors (for example, spot checks for wearing safety appliances/equipment, using proper lock-out tagout procedures, proper lifting mechanics, etc.) and include other means that will establish the program does not deter reporting of injuries and does not constitute retaliation for reporting a specific injury.

If OSHA finds that an employer drug testing policy or incentive program deters the reporting of injuries and illnesses by employees, it may issue significant penalties for each violation. Currently, OSHA may impose penalties of up to $7,000 per violationd or, for willful violations, up to $70,000. However, those penalties are expected to increase in August 2016 to as much as $12,471 and $124,712, respectively.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.