The Occupational and Safety Administration’s (“OSHA”) new electronic reporting requirements impact certain employers’ post-accident drug testing policies that require an automatic drug test following a work related injury. OSHA adopted the rule in May 2016, (effective August 10, 2016) in order to improve tracking of workplace injuries and illnesses, by requiring certain workplaces to submit specified information electronically. See 29 CFR 1904. The workplaces governed by the new rule include all establishments with 250 or more employees that were already subject to OSHA’s record-keeping requirements as well as establishments in certain designated industries with 20 or more employees. Id. at Sections 1904.41(a)(1) & (a)(2).
Though the purpose of the rule is administrative, the commentary to the rule also states that “. . . blanket post-injury drug testing policies deter proper reporting.” Cmt. to Section 1904.35(b)(1)(iv). Specifically, OSHA states that its rule prohibits employers from “ . . . using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Id. Instead, OSHA suggests that employers should use post-injury drug testing only when there is “. . . a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” unless the drug testing is required by federal or state law or regulation. Id. According to OSHA, bee stings, repetitive strain injuries, injuries caused by a lack of machine guarding or by a machine or tool malfunction are examples of work accidents in which employee drug use likely was not a factor. Therefore, drug testing after such an accident/injury likely would violate OSHA’s rule. Unlike some other retaliation prohibited by Section 11(c) of the Occupational Safety and Health Act, OSHA can enforce this prohibition without an employee complaint.
Many employers have policies that require an automatic post-accident drug test if the accident results in an injury. Unless and until the OSHA rule is determined to be unlawful, we believe that employers subject to the rule likely should modify any automatic post-accident testing policy (except those applicable to Department of Transportation testing or other federal or state requirement) to provide that a post-accident test will be administered when there is a reasonable possibility that employee drug use contributed to the injury. Please let us know if you would like us to determine whether your company (establishment) is subject to this rule and if so, whether you would like us to analyze or modify your company’s policy.
The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.
This update was prepared by Charles S. Elbert and Erin M. Leach.