The new rule is final and in effect being enforced as of December 1, 2016. Though the text of the final rule entitled Improve Tracking of Workplace Injuries and Illnesses; does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s commentary accompanying the final rules specifies that the agency views mandatory or blanket post-accident testing as deterring the reporting of workplace safety incidents.
OSHA’s new rules on electronic reporting of workplace injuries requires employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury. OSHA further stated that “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness”. Regarding post-accident drug testing, it could be interpreted that a blanket requirement for the drug test could discourage a reasonable employee from accurately reporting a workplace injury or illness.
To be very clear, OSHA is not prohibiting post-accident drug testing. In fact, there would be no changes in post-accident drug testing policies for DOT regulated employers or other employers required to follow drug testing guidelines from the Drug Free Workplace Act of 1988. In addition, employers complying with State workers compensation drug free workplaces need no changes to their post-accident drug testing policies.
For employers there are five key points to consider with this new rule.
1. Employers can and should still use post-accident drug screening.
2. The regulation requires a “reasonable basis” for employers to perform a post-accident drug test.
3. The rule does not apply to drug testing employees for reasons other than injury-reporting.
4. OSHA will not issue citations for drug testing conducted under a state workers’ compensation law or other state or federal law.
5. OSHA will need to establish the three elements of retaliation to prove a violation:
a. A protected report of an injury or illness;
b. Adverse action;
c. And causation.
Critical steps to take to avoid issues with this OSHA rule:
1. Review your drug free workplace policy! Post-accident policies should be reviewed and updated to ensure the language cannot be construed as “blanket” and therefore be presumed to be retaliatory and deter or discourage reporting.
2. Review your state laws: we know state laws can be a part of an employer policy as well as the enforcement of post-accident or post-injury. Many states have laws that apply to employers in that state. Adherence to state Drug Free Workplace and state worker’s compensation laws will not change and OSHA will not find a violation of 1904.35 (b)(1)(iv) when post-accident testing is performed in compliance with these laws.
3. Re-train supervisors on reasonable suspicion drug testing and include training on post-accident “reasonable suspicion/basis”.
4. Implement a policy for a ‘decision tree’ to be enacted for every accident to determine if the accident requires post accident testing and who involved in the accident should be tested.
The rule - 29 CFR part 1904 requires employers with more than 10 employees in covered industries to electronically report occupational injuries and illnesses, and to ensure that their policies and procedures cannot be construed as retaliatory towards the injured employee. There are several lawsuits pending seeking to block parts of the new OSHA rule. The lawsuit contends that the parts of the rule dealing with discrimination and retaliation—and, most notably, the part limiting post-accident drug testing—exceeds the Agency’s authority, interferes with state workers’ compensation laws, and is arbitrary and capricious. More to come on these lawsuits.
Compliance specialists at USA Mobile Drug Testing can be of assistance for a policy review, supervisor training and general consultation for employers to comply with the post-accident testing component of the OSHA Recording and Reporting Occupational Injuries and Illness regulations. Call today for assistance.