Impact of New OSHA Rules on Georgia Workers’ Compensation Law

Written by: Ashik Jahan, Esq.

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published another final rule regarding the reporting of injuries and illnesses and protecting employees who make complaints. This new OSHA rule, which goes into effect on August 10, 2016, goes after two workplace safety policies that are often involved in Georgia Workers’ Compensation claims: 1) incentive programs for accident avoidance and 2) post-incident drug testing.
OSHA will consider incentive programs to be retaliatory if they offer benefits to employees who do not report injuries and illnesses. A policy will not be considered to be reasonable if it would “deter or discourage” an employee from accurately reporting a workplace injury or illness. Programs that reward employees for correctly following legitimate safety rules or promote participation in safety trainings or investigations will not be considered to be retaliatory. Consequently, safety incentive programs should be reviewed to ensure that they incentivize reporting of injuries and illnesses and do not discourage employees from making such reports in any way.
OSHA also concluded that “blanket” post-injury drug testing deters proper reporting. However, when the affected employee is “likely to have contributed to the incident,” and a drug test can accurately identify impairment caused by the drug use, such testing would be permissible. The new OSHA rule explains that drug tests would not be considered to be “reasonable” where an employee suffers a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Also, given the focus on identifying impairment, blood screens may now be necessary when a drug test is needed, as less-intrusive urine screens, which can easily identify the presence of drugs, may not be adequate in identifying impairment.
However, post-accident blanket drug testing will not be considered retaliatory if it is required by state law. In Georgia, workers’ compensation requirements for drug testing are covered by O.C.G.A. §34-4-415. This section specifically notes that “an employer shall not have a legal duty under this article to request an employee or job applicant to undergo testing.” Instead, the drug testing program is only required for employers who wish to benefit from workers’ compensation insurance premium discounts.
Even still, under the current rules in Georgia, employers must require an employee to submit to a substance abuse test whenever he or she has caused or contributed to an on the job injury or lost work time due to one. This may no longer be permissible under the new OSHA rules, which means this section of law in Georgia will likely be modified. Employers should keep in mind that testing conducted based upon a reasonable suspicion, and where the employer promptly details in writing the circumstances which formed the basis of the determination, should be enough to justify the testing itself.
Given OSHA’s position, reasonable suspicion testing may become the new standard, and blanket testing will become a thing of the past. Those employers who wish to maintain a blanket policy after August 10, 2016, will need to be prepared for heightened scrutiny when reporting workplace incidents. Consequently, a revision of policies to comply with OSHA, and to maintain the ability to deny benefits to workers who are injured while intoxicated or under the influence, pursuant to O.C.G.A. §34-9-17(b)(2), may now be necessary.

HBS publications are intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.