Re: OSHA Final Rule - 1904.35(b)(1)(i) and (iv)

The drug testing industry and employers alike have suffered anxiety lately over the recent OSHA claims prohibiting post-accident drug testing. The recent OSHA ruling has a goal to improve tracking of workplace injuries and illnesses and to preserve employee’s right to report injuries and illnesses free from retaliation.

OSHA has clarified it’s position on post-accident drug testing. The rule does not ban appropriate disciplinary, incentive, or drug-testing programs. 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 including workers compensation rules for drug free workplace and post-accident drug testing. 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.

OSHA will not issue citations under this rule for drug testing conducted under a state workers’ compensation law, DOT testing or other state or federal law. Drug testing under state or federal law does not violate this rule. The rule only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances. OSHA will need to establish the three elements of retaliation to prove a violation: a protected report of an injury or illness; adverse action; and causation.

Employers may conduct post-incident drug testing pursuant to a state or federal law, including Workers’ Compensation Drug Free Workplace policies, the rule does not apply to drug testing under state workers’ compensation law, DOT testing or other state or federal law. Random drug testing and pre-employment drug testing are also not subject to the rule.

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.

For example, if an employee reports a repetitive strain injury or is injured as an innocent bystander and the employer requires post-incident drug testing, then that testing could violate the rule because it is unlikely that such injuries would be related to drug use by the reporting employee. In contrast, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury experienced while operating a crane or a forklift if the employee’s conduct contributed to the injury. Employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the reporting employee could have contributed to the reported injury or illness.

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.

What should employers do now?

As previously reported in this blog, we recommend employers take actions as follows in order to be compliant with OSHA Final Rule - 1904.35(b)(1)(i) and (iv):

1. Review your drug testing policy for provisions regarding post-accident testing. At some point a Blanket Post-Accident Testing Policy may need to be revised. Policies may have to be tightened to tie referrals for post-accident testing to situations where it appears an employee caused or contributed to the accident or the employee involved in the accident is reasonably suspected to be under the influence of drugs or alcohol. It will be critical to be able to demonstrate that your drug testing policies do not deter reporting of injuries and does not constitute retaliation for reporting a specific injury.

2. Start scheduling reasonable suspicion training for your Supervisors. Do your supervisors know how to determine signs and symptom of an employee under the influence of drugs or alcohol? Training will reduce your exposure to liability.

3. Consider implementing or increasing random drug testing in order to attempt to detect and deter illegal drug users before accidents occur. Random testing programs show a return on investment.

4. Get involved with your State’s Drug Free Workplace Program and perhaps receive a discount on your worker’s comp insurance.

Check back often for updates on this important issue. Compliance specialists at USA Mobile Drug Testing will be available to assist with your drug free workplace policy updates. Call today for expert assistance.

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).