Many employers implement post-accident drug and alcohol testing policies to promote workplace safety, as part of accident investigation efforts, and in the hope of reducing workplace accidents and workers’ compensation claims.
But for those employers, the legal landscape may have shifted on May 12 when the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses.
According to Dale Deitchler, a shareholder at Littler Mendelson, the employment law firm, the new rule increases an employer’s obligation to ensure that employees report work-related injuries and illnesses. Specifically, effective 90 days after publication of the rule, on August 10th, employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately.
“Under this new reporting standard, employer policies that request or require post-accident drug or alcohol testing will now face scrutiny by OSHA because, the agency claims, post-incident testing deters injury reporting,” Deitchler explains.
Avoiding new fines
If OSHA finds that an employer drug testing policy deters the reporting of injuries and illnesses by employees, it may issue steep penalties for each violation. Currently, available penalties up to $7,000 per violation may be imposed or, for willful violations, up to $70,000. However, those penalties will increase substantially in August 2016, when they are expected to go as high as $12,471 and $124,712, respectively.
To avoid those penalties, Deitchler says, employers should focus on overbroad post-accident policy language and consider testing that is more narrowly tailored to at least show recent illegal drug use (for example, oral fluids testing).
In fact across-the-board post-accident testing – testing in connection with any accident or injury – should be eliminated.
“This would take out broad-based testing where circumstances lack any sudden or unexpected events component such as testing when there is a repetitive use injury,” he explains. At a minimum, policies should be tightened to tie post-accident testing to situations in which an employee caused or contributed to the accident and property damage is a level estimated by the employer (for example, $1,000).
While this can get a bit tricky, Deitchler explains that it’s important to note that the limitations on post-accident workplace drug testing are not stated in the new rule itself, but arise out of the commentary to the rule. In other words, he says, there has been no “regulation” change for post-accident testing.
But taking OSHA’s commentary at face value as to how it will enforce the new rule, the new rule changes would prohibit employer practices that mandate automatic testing in connection with any accident – testing merely because of a first report of injury or other situations that have no likely connection to illegal drug or alcohol use. That would include repetitive use injuries such as carpal tunnel syndrome injuries without any tie to a defining event, such as back strains or muscle spasms.
What employers should keep in mind
Another takeaway is that employers should impose time limits for conducting a test following an accident.
Deitchler says the new rule and its enactment will likely result in legal challenges, but it is, for the time being, an official, final and enforceable rule, with its requirements for procedures, employee information, and prohibition on retaliation becoming enforceable on August 10, 2016.
OSHA does say that an employer that conducts drug testing to comply with the requirements of a federal or state law or regulation will not be considered in violation of the rule, because its motive in conducting testing is not retaliatory.
“Employers who must conduct post-accident testing – pursuant to U.S. Department of Transportation regulations, for example – should continue to do so, despite the fact that the DOT’s testing program mandates the use of urine drug tests, which do not measure impairment,” he says.
