So....you developed a comprehensive drug and alcohol program, had HR look it over and even sent it to your attorney for review. Are you meeting all compliance regulations? Well, you thought you were until OSHA decided to change the game slightly. OSHA, within its new electronic record keeping rule, has added language that targets company wide post-accident drug/alcohol testing. Simply, OSHA has come out to say that if a person is injured and drug use or alcohol use could not have contributed to the cause, then the injured employee should not be tested for being under the influence.
This new rule has been delayed until December 1, 2016 in order for the courts to come to a decision, as many companies and leading industry agencies have filed lawsuits against OSHA. Please see an excellent article from Ogletree Deakins about this new proposed regulation.
The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining “in more detail” two provisions added to the recordkeeping regulation: Section 1904.35(b)(1)(i) requiring “employers to have a reasonable procedure for employees to report work-related injuries and illnesses”; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses. As we have previously reported, OSHA identified post-accident drug testing and safety incentive plans as programs that may result in impermissible retaliation against employees who report injuries when the amendments to the recordkeeping regulation were issued on May 12, 2016.
Section 1904.35(b)(1)(i)—“Reasonable” System for Reporting
Section 1904.35(b)(1)(i) requires employers to implement a “reasonable” system for employees to use in reporting work-related injuries and illnesses. The guidance adds little to the explanation included when OSHA issued the original amendments to the recordkeeping regulation. OSHA reiterates that employers must give employees a “reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner.” A procedure requiring employees to report “as soon as practicable after realizing” they are injured is “reasonable,” but it would not be “reasonable” to discipline employees for “failing to report before they realize they have a work-related injury” or “for failing to report ‘immediately’ when they are incapacitated because of the injury or illness.”
When it issued the final amendments to the regulation, OSHA identified three policies that “can be used to retaliate against workers for reporting work-related injuries or illnesses and therefore discourage or deter accurate recordkeeping: disciplinary policies, post-accident drug testing policies, and employee incentive programs.” Section 1904.35(b)(1)(iv) is not “prohibiting these kinds of policies categorically” and “does not impose any new obligations or restrictions on employers.” Instead, the provision simply “gives OSHA another mechanism to address conduct that has always been unlawful” under Section 11(c) (the whistleblower provision) of the Occupational Safety and Health Act (OSH Act): “retaliating against employees for reporting work-related injuries or illnesses.”
To prove a violation of Section 1904.35(b)(1)(iv), OSHA must show:
“The employee reported a work-related injury or illness”;
“The employer took adverse action”— “action that would deter a reasonable employee from accurately reporting a work-related injury or illness”; and
“The employer took the adverse action because the employee reported a work-related injury or illness.”
“OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason,” which will be a “fact-specific inquiry.”
When Will Post-Accident Drug Testing Be Deemed Retaliatory?
Post-accident drug and alcohol testing is not prohibited. Rather, Section 1904.35(b)(1)(iv) prohibits post-accident testing only when the employee reports an injury and a test is conducted “without an objectively reasonable basis.” The “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed.” The factors OSHA will consider include whether “other [non-injured] employees involved in the incident” are tested and whether the employer “has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed.”
OSHA provides an example: A crane accident injures several employees working nearby but not the operator. Given the facts, “there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.” Testing all of the involved employees is “appropriate,” while testing only the injured employees “would likely violate section 1904.35(b)(1)(iv).” Testing an employee “whose injury could not possibly have been caused by drug use”—such as a repetitive motion strain—“would likely not be objectively reasonable.
Finally, OSHA clarifies a troubling issue regarding the type and timing of the test. OSHA originally stated that the test must measure impairment at the time of the injury. OSHA now says it “will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.” “OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.” In light of this language, employers can discipline employees based on positive drug tests for marijuana and other drugs where the test is not capable of measuring the level of impairment at the time of the injury.