For many employers, post-accident drug
testing has become routine. Through such testing, employers seek to
enhance workplace safety and reduce workers’ compensation claims. A
recent “anti-retaliation” rule issued by the U.S. Occupational Safety and Health Administration (OSHA) on May 12, 2016, however, calls into question the wisdom of continuing to use blanket post-accident drug testing.
New Limits Intended to Promote Workplace Injury Reporting
OSHA’s
new rule ostensibly is designed to promote timely reporting of
workplace injuries and protect reporting employees against retaliation.
At the same time, the rule makes clear that employer drug testing
programs used in cases where an injury is unlikely to have been caused
by drug impairment and where the test applied cannot measure such
impairment will be subject to scrutiny as retaliatory. If deemed
retaliatory, OSHA can levy fines against the employer.
Under
the rule, by August 10, 2016, employers must have established “a
reasonable procedure” for employees to timely report work-related
injuries and illnesses. The rule prohibits the reporting procedure from
deterring or discouraging an employee from accurately reporting a
workplace injury or illness.
The rule also prohibits employer
retaliation for an employee’s reporting of an injury or illness and
contains a built-in bias that post-incident drug testing deters such
reporting. Specifically, it bars any “adverse action that could well
dissuade a reasonable employee from reporting a work-related injury or
illness.”
OSHA states that “blanket post-injury drug testing policies
deter proper reporting” and concludes that such drug testing may
constitute an “adverse employment action.” Unless an employer “limit[s]
post-incident testing to situations in which 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,” the employer faces
OSHA scrutiny and potential penalties.
According to OSHA:
“Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”
OSHA states that only testing where
drug use likely contributed to the accident and that accurately tests
for impairment will be immune from enforcement action under the new
rule:
“For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety.”
Potential Fines Increased Significantly
Based
on a finding that a drug testing policy deters employees from reporting
injuries and illnesses, OSHA presently may levy penalties up to $7,000
per violation. For willful violations, penalties up to $70,000 may be
levied. These amounts are expected to increase to as much as $12,471 and
$124,712, respectively, in August 2016.
Employer Take-Aways: Post-Accident Drug Testing Policies
Blanket post-accident testing policies should be reviewed.
Employers with blanket post-incident or post-accident drug testing
policies may need to defend a decision to test an employee based on the
facts of the incident or accident. While courts have yet to weigh in on
OSHA’s rationale that a drug test, standing alone, is a form of an
“adverse employment action,” employers should exercise caution when
considering administering such tests.
It is
prudent for employers to review blanket drug testing policies in order
to minimize scrutiny by OSHA. Post-accident drug testing might be
advisable only in those instances where it appears that drug use caused
or contributed to the accident and where the test used can establish
impairment.
Employers may well have cause to stand by a blanket policy,
but if such a position is taken, the employer should document the
rationale for keeping the policy in light of this new rule (e.g., the
policy is part of a workers’ compensation carrier’s guidelines or is in
response to other considerations that show the policy does not deter
reporting of work place injuries and is not retaliatory).