There has been a lot of discussion about the U.S. Occupational Safety and Health Administration’s (OSHA) recent changes to its Recording and Reporting Occupational Injuries and Illness regulations, followed by a misinterpretation of the new regulations. Many have mistakenly interpreted it to say that post accident drug testing was no longer permitted, however, nothing could be further from the truth. It simply prohibits employers from trying to discourage employees from filing accident reports. Employers are still legally permitted to conduct post accident drug testing according to their documented drug testing program—even in states where marijuana is legal.
On May 12, 2016, OSHA made a series of changes on its Recording and Reporting Occupational Injuries and Illness regulations. One of the most important changes in the published Final Rule (29 CFR 1904 / 81 FR 29623) involves the revision of subsection 1904.35(b)(1)(iv), which stipulates: You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.
How does this affect employers?
Currently, OSHA regulations compel companies with 250 and above employees to keep a detailed annual record of all workplace-related injuries and illnesses. The data are recorded electronically in the Form 300 Log and OSHA 301 Incident Report forms. This data helps OSHA analyze the level of workplace safety and general well-being of employees across a wide spectrum of industries, which is crucial when formulating general and industry-specific training, guidelines and policies.
However, the collation of the data is dependent almost entirely on voluntarily reporting of accidents, injuries or illness by employees—and this is the root of the problem.
Companies typically perform post-accident drug tests to discover whether the incidences are caused by consumption of illegal substances—which, admittedly, are the primary causes of accidents in the workplace. Nevertheless, the practice is believed to discourage many employees from reporting incidents in order to avoid drug tests, which have skewed OSHA data and will continue to prevent accurate recording and collation of data.
The introduction of subsection 1904.35(b)(1)(iv) is designed to resolve the issue by taking away the fear of reporting from employees. The Final Rule, effective from December 1, 2016, will require companies to provide specific and explicit reasons for performing post-accident drug tests, instead of a blanket test policy. This will also prevent employers from using drug tests as a retaliatory weapon against employees.
This directive is reinforced by subsection 1904.35(b)(1)(iii)(B), which stipulates: Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses;
Reaction from businesses
However, there were immediately complaints from business owners and managers who felt that the directives were vague. In addition, there is presently no reliable test method for marijuana impairment aside from post-accident drug test. To clarify the issue, OSHA released a guidance memo on October 19, 2016.
Among the highlights of the memo were:
The directive will not prevent employers from conducting
- DOT, or any state and federally-mandated post-accident drug tests
- Shippers and insurers-mandated drug tests for contractors
- Post-accident drug tests outlined in any collective bargaining or any similar agreements
In addition, OSHA also stressed that
- Standard reporting procedure for lodging reports should not be burdensome for employees
- Employees should not be disciplined for any delay in reporting.
- Employers may not create rewards program to disincentivize staff from filing accident reports
Nonetheless, many business owners are still skeptical about the revised Final Rule. A few have even tried to file nationwide injunctions to prevent the law from taking effect. One particular case, filed in Texas by a group of national trade associations, was dismissed after Judge Sam Lindsay of the Northern District of Texas decided that the plaintiffs failed to demonstrate that the directive will “show a substantial threat of increased injury” if the petition for injunction was denied. Judge Lindsay further stated that OSHA’s directive “leaves plenty of room” for businesses to modify their existing drug testing programs without any loss of operational efficiency.
However, another case filed in January 2017, the Federal Court of Complaint of Oklahoma sided with the plaintiffs, the National Association of Home Builders. Rather than completely revoking subsection 1904.35(b)(1)(iv) though, Judge David Russell of the Western District of Oklahoma granted OSHA’s request to stay the case while the agency decides whether to “revise or remove portions of the rule.” Judge Russell ordered OSHA to submit progress reports every 90 days to ensure that the court is kept updated of any, or the lack of, changes to the Final Rule.