OSHA Delays Enforcement Of Post-Accident Drug Testing Rule Until December 1, 2016

As we continue to monitor the implementation of OSHA’s new file rule to Improve Tracking of Workplace Injury & Illness, it’s no surprise to see some fallout around the anti-retaliation provisions – specifically the controversial automatic post-accident drug testing rule – that was supposed to have already gone into effect.

What’s Delaying The Rule?

Due to a current lawsuit, the enforcement date has been delayed until December 1, 2016.

The lawsuit was filed on July 1, 2016 just prior to the original implementation date of August 10, 2016. That pushed the date to November 1, 2016, which has come and gone with no resolution, which is how we now find ourselves planning for the rule to go into effect on December 1, 2016.

The lawsuit was brought forth by several private parties seeking an injunction on the rule. While OSHA is trying to hold the potential injunction to only the parties involved, the judge has requested the parties further brief the issue to determine if the injunction should apply nationwide.

The Post-Accident Rule Still Has Many Ambiguities

Part of the reason for the lawsuit and delays is that employers are still not totally clear on what exactly the rule means for their current discipline, drug testing and incentive programs. There is a lot of gray area that we need answers to.

Fortunately, OSHA has been happy to oblige. The following real world scenarios come directly from OSHA’s website in an effort to provide clarification and give guidance about complying with the provisions.

Drug Testing Program Clarification & Scenarios From OSHA

“The rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

Employers may conduct post-incident drug testing pursuant to a state or federal law, including Workers’ Compensation Drug Free Workplace policies, because section 1904.35(b)(1)(iv) does not apply to drug testing under state workers’ compensation law or other state or federal law. Random drug testing and pre-employment drug testing are also not subject to section 1904.35(b)(1)(iv).

Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing would likely only discourage reporting without contributing to the employer’s understanding of why the injury occurred. Drug testing under these conditions could constitute prohibited retaliation.

Below are examples of drug testing programs and how the new rule may be interpreted to apply:

Scenario 1: Employer required Employee X to take a drug test after Employee X reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.

Question: Did Employer violate section 1904.35(b)(1)(iv) by subjecting Employee X to a drug test simply because she reported a work-related injury?

Answer: Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury. If drug use could not reasonably have contributed to a particular injury and the employer has no other reasonable basis for requiring a drug test, section 1904.35(b)(1)(iv) prohibits the employer from drug testing employees simply because they report injuries unless the drug test is conducted pursuant to a state workers’ compensation law or other state or federal law.

Scenario 2: Employee X was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee X to take a drug test.

Question: Did Employer violate section 1904.35(b)(1)(iv) for drug testing Employee X?

Answer: No. Because Employee X’s conduct—the manner in which he operated the forklift—contributed to his injury, and because drug use can affect conduct, it was objectively reasonable to require Employee X to take a drug test after Employer learned of his injury. Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.

Scenario 3: Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers’ compensation premiums under the state’s voluntary Drug-Free Workplace program. Employer drug tests Employee X when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X?

Answer: No. Drug testing conducted pursuant to a state workers’ compensation law, whether voluntary or mandatory, is not affected by section 1904.35(b)(1)(iv).

Scenario 4: Employer requires all employees who report lost-time injuries to take a drug test because the employer’s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers’ compensation law. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Would OSHA cite Employer for violating section 1904.35(b)(1)(iv) in these circumstances by drug testing Employee X to secure lower private insurance premiums?

Answer: No. To maintain consistency between public and private worker’s compensation coverage in the same state, OSHA will not cite employers under section 1904.35(b)(1)(iv) who conduct post-accident drug testing under private party policies that mirror the applicable state workers’ compensation law.

Scenario 5: Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee X (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X pursuant to a collective bargaining agreement?

Answer: Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries absent a reasonable belief that drug use could have contributed to the injury or another reasonable basis for requiring a drug test. Although OSHA does not intend for section 1904.35(b)(1)(iv) to supersede other state or federal programs addressing post-injury drug testing of employees, collective bargaining agreements may not supersede section 1904.35(b)(1)(iv).”

What This Means For You

While it is possible that the judge will rule in favor of a nationwide injunction where OSHA would be enjoined from enforcing the post-accident drug testing rule, it’s something we simply cannot speculate on with confidence at this point.

We recommend employers still proceed under the assumption that the rule will be enforced December 1, 2016. This means reviewing your injury and illness policy and reporting process, and ensuring the language supports the guidance above from OSHA.

Optimum Safety Management Can Help With OSHA Process Safety Management Planning

With the lawsuit and delays, you can be sure that if and when the rule is finally enforced, OSHA will have little tolerance for infractions. If you still need to review and update your policies and procedures, now is the time to get it done.

If you need help reviewing your OSHA process safety management plan, contact Optimum Safety Management at 630-759-9908.

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