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New OSHA Rules Can Affect Post-accident Drug Testing and Employee Safety Incentive Programs

In the middle of May this year, OSHA issued a final rule on Recordkeeping and Reporting of Workplace Injuries and Illnesses. As with most missives from our friends at OSHA, the new rules cover a multitude of things that employers must do to comply. Most of the requirements under the new recordkeeping and reporting rule take effect in 2017.

HOWEVER, a portion of the new recordkeeping and reporting rule goes into effect August 10, 2016 – a scant month away. It’s this portion of the new rule that may cause some employers problems…

Since the Drug Free Workplace Act was passed in the 1980’s, employers have made use of a variety of drug testing protocols to comply with the requirement to provide employees a workplace free from illegal drugs. Many employers do pre-employment drug testing of applicants on a post-offer basis. As long as an offer of employment is made contingent upon achieving a clean drug test result, OSHA has no problem. The same applies with random and for-cause drug testing protocols. As long as the rules are followed and the program is fairly and consistently applied OSHA is not concerned.

For some reason however, the post-accident drug testing of employees who experience a workplace injury event is coming under question. For years, employers have used post-accident drug testing to rule out illegal drug use as a cause of the injury. Some state work comp department’s view a positive post-accident drug test as the proximate cause of the event. Under the new rule, blanket post-accident testing of all employees experiencing a workplace injury or illness can be deemed as “retaliatory” on the part of the employer.

One of the stated goals of the new Recordkeeping and Reporting rule is to eliminate retaliation by the employer against an employee who reports a workplace injury or illness. While the goal is noble, some employers take exception to the restrictions placed on them by the new rule.

For example, in statements found in the preamble of the new rule, OSHA states that employers should be selective in deciding whether or not to post-accident test an injured worker. OSHA says employers should determine whether or not there was a potential for illegal drug or alcohol use to be a cause of the injury event. In cases where the employer feels that illegal drugs may have played a part, the employer must PROVE that the requirement of a post-accident drug test was NOT done in retaliation against the injured worker for reporting the injury.

That’s not all… OSHA is leaving the determination as to whether or not a post-accident drug test was retaliatory up to its staff of Field Compliance Officers who regularly inspect our nation’s workplaces. The materials I have read indicate that a Field Compliance Officer can recommend a citation be issued and a penalty levied against an employer who they deem retaliated against a worker for reporting an injury by requiring a post-accident test EVEN IF THE INJURED WORKER DOES NOT FILE A COMPLAINT.

But wait! There’s more!  OSHA is also looking at Employee Safety Incentive Programs as being retaliatory against injured workers reporting an injury who are denied an award, bonus, or other benefit when non-injured workers receive such a benefit. In other words, if John is deemed not eligible to receive a slice of pizza at the company safety party because he reported a workplace injury, that’s retaliation. Likewise if the members of John’s team are deemed ineligible for pizza because he alone reported an injury, OSHA sees employer retaliation – and a potential for citation and penalty.

What does August 10, 2016 mean for the average employer?

  1. Blanket post-accident drug testing for all workers injured on the job is out. Continuing to do as many employers have done for decades is an invitation to scrutiny by OSHA and possible citations and fines.
  2. Employers who still wish to pursue post-accident testing must avow that there was a potential for the presence of illegal drugs or alcohol to be a causative factor for the injury event.
  3. After August 10, the positive results of a post-accident test must be significant enough to have caused impairment of the injured worker. The old standard of “detectable presence” at the minimum levels for drugs or alcohol in the collected sample is no longer valid.
  4.  Safety incentive programs that penalize employees or work groups for reporting a workplace injury event are suspect of being retaliation on the part of the employer.

Of course, OSHA is quick to point out that those employees who are subject to post-accident drug or alcohol testing because they fall under federally mandated programs – like CDL licensed truck drivers – must continue to follow the rules of those programs.

While the promulgation process for passing the new Recordkeeping and Reporting rule took some time, the relative short span between issuance of the new rule on May 15 and enactment of the anti-retaliation provisions on August 10 have caused some serious concerns among employers – and their attorneys. The internet is humming with position statements and threats of legal action. Who knows what the final outcome will be?

None-the-less, employers should take a serious look at their current post-accident testing rules and employee safety incentive programs to avoid running afoul of the August 10 anti-retaliation portions of the Recordkeeping and Reporting rule.

**I am NOT an attorney (nor do I play one on TV). There are some facts in this article and there are some opinions. I am just trying to be a resource. Please do not take any of this as legal advice. Thank you.**

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