OSHA rule creates additional drug-testing risks for employers

On December 1, 2016, the Occupational Safety and Health Administration (OSHA) began enforcing a new rule, contained in 29 CFR 1904, that requires many employers to record and report information to OSHA on work-related injuries and illnesses.

While for many employers the new rule may appear as little more than another regulatory requirement, companies that drug-test their workers must be alert to potentially serious and costly consequences.

Exempt and Non-Exempt Employers. Before we discuss the particulars of the new OSHA rule, here are the general parameters for whether it applies to your company:

• If your company had more than 10 employees at any time during the last calendar year, you are likely required to keep OSHA injury and illness records, and the drug-testing limitations will apply (certain low-risk industries are partially exempt from this requirement, but construction is not among them).

• If your company had 10 or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records, unless OSHA or the Bureau of Labor Statistics informs you in writing that you are required to keep such records. Note that, regardless of how many people you employ, you must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.
  

Reports by Employees. Employer compliance with the new rule depends in part on employees’ willingness to report workplace injuries and illnesses. OSHA has identified the following factors that can discourage employees from reporting:

• fear of employer retaliation for reporting an incident; and

• fear of testing positive for drug use.
  

Retaliation. To encourage employees to report workplace injuries and protect them from retaliation, the new rule:

• requires employers to inform employees of their right to report work-related injuries and illnesses, free from retaliation;

• requires that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and not deter or discourage employees from reporting; and

• incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
  

Drug Testing. The “Employee Involvement” section of the new rule states that an employer’s reporting procedure is unreasonable if it would discourage a reasonable employee from accurately reporting a workplace injury or illness.

One example of an unreasonable procedure, according to OSHA, is automatic post-accident drug testing. By OSHA’s reasoning, if an employee expects to be drug-tested after making an injury/illness report, and they fear what the drug test will reveal, they will be less willing to make the report, thus undermining the employer’s ability to collect, record and report injury and illness information to OSHA.

Consequently, employer policies that require blanket post-accident drug testing violate the new rule.

Penalties. Employers who violate the new rule may be required to pay monetary penalties, reinstate employees, and pay terminated employees back pay. Effective August 2, 2016, OSHA has increased the maximum penalties as follows:

• Serious violation: $12,600 (increased from $7,000)

• Willful or repeat violation: $126,000 (increased from $70,000)
  

Permissible Drug Testing. Employers are allowed to drug-test in connection with a workplace injury or illness if the following conditions are met:

• There is a reasonable possibility that drug use was a contributing factor to the reported injury or illness;

• the drug test can accurately identify impairment caused by drug use; and

• the drug test is not designed in a way that may be perceived by the employee as punitive or embarrassing.
  

The commentary to the new rule provides that drug testing would be considered unreasonable in response to the reporting of, for example, a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.

Catch-22. Some employers are required to drug-test in order to comply with other laws or requirements, creating what may appear to be a damned-if-you-do-damned-if-you-don’t situation.

The new rule does allow an employer to continue to conduct drug testing in order to comply with a state or federal law or regulation or to meet insurance investigation and workers’ compensation requirements. In such instances, the employer’s motive would not be considered retaliatory . Left unaddressed is the issue of employee fear of a positive drug test.

By this point you may have gathered that complying with non-OSHA requirements on one hand, without tripping an OSHA wire on the other, is risky business that will probably call for professional guidance.

Employer Action. To make sure you are complying with the new rule and state law, you and your employment lawyer should review your drug-testing policy and determine whether any modifications are in order. If necessary, you should begin contemplating appropriate procedures for reporting injuries and illnesses. You should also be vigilant in enforcing consistent application of your drug-testing policies.

You should also review your employee training practices to ensure that you are properly informing employees of their right to report injuries and illnesses as required under the new rule.

Taking steps to comply with the new rule will help you avoid steep penalties and costly litigation in the future. You should also take time to identify the causes of workplace injuries and illnesses and strive to implement policies and procedures aimed at prevention.