What OSHA’s New Rule Means for Drug Testing

(Summer 2016) On May 12, 2016, the Occupational Safety & Health Administration (OSHA) announced a new ruling that may impact your company’s post-accident drug testing requirements.  The rule establishes new regulations for the electronic reporting of employee injury and illness.  In the future, the results from employers’ reports will be posted on a public website established by OSHA and accessible to the general public – confidential information will not be available.  The rule, “Improve Tracking of Workplace Injuries and Illnesses” becomes effective August 10, 2016*.

One objective of the new rule is to ensure that employees understand their right to report work-related injuries and illnesses free from discouragement, retaliation or perception of punishment.  Specifically, employers must

• inform employees of their right to report work-related injuries and illnesses,
• inform employees about the company’s “reasonable procedures” for prompt and accurate reporting, and
• take appropriate measures to prevent actions or the perception that there can be adverse action or discrimination against employees for making these reports.

All this toward improving the rate and accuracy of injury and illness reporting.

Employers found violating the new rule could face penalties of up to $7,000 per violation or up to $70,000 for willful violations.  These penalties will increase substantially in August 2016, when they are expected to be as high as $12,471 per violation and $124,712 for willful violations.

OSHA’s commentary foreshadows how it intends to enforce the rule on several issues. The regulation language does not specifically address post-accident drug testing but does address it in this commentary.   The agency is concerned that broad-based post-accident drug testing may be seen as retaliatory and deter proper reporting.

OSHA’s commentary goes on to say that employers’ post-accident testing should only occur when “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.”  Examples given that lack the likelihood drug abuse was the cause included allergic reactions, animal or insect bites, back or muscle strains caused by over exertion, carpel tunnel syndrome, injury caused by the lack of machine guarding or a machine or tool malfunction, and diabetic episodes.

Intersection With Other Authorities

It is important to note, the concerns of this commentary have no impact on post-accident testing mandated by federal regulations (e.g., Department of Transportation) or directed by state workers’ compensation laws (e.g., premium reduction laws such as Ohio’s Drug-Free Safety Program or HB 80 requirements).

The Ohio Bureau of Workers’ Compensation reached out to OSHA for clarification and received  confirmation that “employers complying with state or local requirements to drug test would not be in violation of the new requirements.”  Further, OSHA expressly stated, “If an employer has the program in place to meet the [Ohio] Drug-Free Safety Plan requirements and earn the premium reduction, the program would not be in violation of 1904.35.”

Remaining Confusion

• The commentary states that reasonable suspicion is not required for post-accident testing, but it is unclear what they mean when they use the phrase, “reasonable possibility” that drugs were a contributing factor to the incident or accident. Providing examples of injuries or illness with no plausible connection to drug and alcohol abuse is helpful and makes sense that drug testing not occur.  But what about injuries that clearly could have been caused by an employee if he or she was under the influence of a prohibited substance?
• OSHA’s comment that the post-accident test should, “… accurately identify impairment caused by drug use” is confusing. Urine testing, long considered the gold standard in scientific analysis and for legal defensibility, only detects use, not impairment.  In fact, one of the challenging conundrums about all drug testing is the lack of evidence-based, scientific, standardized levels which unilaterally constitute impairment.  These standards have only been established for alcohol
• OSHA is concerned that an employer’s broad application of post-accident testing may be perceived by some employees as punitive. Yet, if it is a universally and objectively applied method of operation against written practices at a company and, therefore, non-discretionary, couldn’t the new rule open the door to a cry from employees about discrimination? What’s stopping an employee who knows he or she will test positive from crying, “punitive” when asked to take a test following an incident or accident?

OSHA’s anticipated directives may clarify some of these questions, however, this ruling will surely be challenged.

But as we await guidance from issued directives, given OSHA’s commentary, we suggest it is prudent for employers who do not have an exemption from this issue of the rule (that is, federal or state post-accident compliance requirements) to confirm the status of their drug testing policies following an accident.  Such policies should be narrowly tailored so that post-accident drug testing is tied to situations in which an employee likely caused or contributed to the accident.  Furthermore, post-accident testing needs to be operationally designed and implemented in a way not considered retaliatory, punitive or discouraging for workplace illness or injury reporting.  It is also prudent to consider testing methodology that affirms recent illegal drug use (such as oral fluids testing).

 Working Partners® is working closely with its law firm Littler, Mendelson, P.C., the largest employment law firm in the world.  We will be supporting our readership and provide resources to our clients as the dust settles and directives from OSHA are received and interpreted. If you have questions in the meantime, be sure to call our offices at 614-337-8200.

*UPDATE: OSHA has delayed the implementation of the new rule until November 1, 2016 to allow OSHA to create educational material for employers and enforcement guidance for OSHA staff.

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