GSBE Weekly Update 11/28/2018
OSHA Clarifies When Post-Accident Drug Testing Is Permitted
The Occupational Safety and Health Administration (OSHA) has clarified its position that post-accident drug testing is not prohibited under the Improve Tracking of Workplace Injuries and Illnesses rule. The agency said many employers that conduct post-incident drug testing likely do so to promote workplace safety and health.
Action taken under a post-incident drug-testing policy would only violate the law if an employer conducted the drug test to “penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health,” according to an October memorandum.
The anti-retaliation provisions of the rule took effect in 2016, during President Barack Obama’s administration. The provisions prohibit employers from using drug testing or the threat of a drug test to discourage workers from reporting on-the-job injuries and illnesses.
Specifically, OSHA said employers shouldn’t administer blanket post-accident drug tests in situations when drug use likely did not cause an injury.
Many employers were confused about the rule and how to balance the need to provide a safe and healthy workplace with the limitations on drug testing.
OSHA noted that the memorandum would supersede any conflicting provisions in prior interpretive documents and clarified that most workplace drug-testing programs are permissible, including:
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Additionally, drug testing that is conducted to evaluate the root cause of a workplace incident that “harmed or could have harmed employees” is allowed if the employer tests all workers who could have contributed to the incident, rather than just the employees who reported injuries.
The agency is saying that if an employer administers drug tests to conduct a root-cause analysis, it’s not retaliatory, explained Melissa Bailey, an attorney with Ogletree Deakins in Washington, D.C. “These and other examples of permissible drug testing give employers wide latitude,” she said.
Points for Employers
A key takeaway from the memorandum is that most drug-testing programs are permissible, including random and post-accident drug testing, said Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C.
Employers with workers in safety-sensitive roles that are concerned about drug use leading to accidents may want to have a blanket post-injury drug-testing policy because it is important to ensure that workers are not under the influence, Bailey said.
OSHA already has exceptions allowing blanket post-accident testing if it could help the employer obtain discounted workers’ compensation rates or is used as part of an investigation to find the root cause of an incident. The new guidance seems to also allow such testing to screen out workers who are under the influence, Bailey noted. “The key will be consistency in applying the policy for post-accident drug testing across similarly situated employees,” she said.
Best practices for employers are likely to vary depending on state laws regulating workplace drug testing, Cordaro said. “But in general, employers who want to ensure their drug-testing programs are not a deterrent for employees to report work-related injuries should consider drug testing employees whose behavior may have had an impact on the incident.” For example, employers may want to drug test only the forklift driver who runs into another employee, rather than drug testing the employee who was simply a bystander.
The anti-retaliation provisions are part of a broader electronic-record-keeping rule, which requires certain employers to submit injury and illness data through a portal on OSHA’s website.
David Michaels, the OSHA administrator during Obama’s administration, said that “making injury information publicly available will ‘nudge’ employers to focus on safety.” But opponents claim that public disclosure would unreasonably harm employers.
The Trump administration has proposed a rule that would scale back the information large employers need to file electronically, but it doesn’t address the anti-retaliation provisions. There are still undecided lawsuits in federal courts that challenged these provisions when they were first issued, but they have been put on hold.
It’s possible that OSHA will issue a proposal to amend or eliminate the anti-retaliation provisions to address the claims in these lawsuits, Bailey said. She noted the Occupational Safety and Health Act already provides whistle-blower protections that prohibit employers from retaliating against workers who report injuries and illnesses.