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OSHA’s New Rule On Post-Injury Drug Testing

Written by: Don Benson, Esq. and Sam Sykes, Esq.

OSHA’S NEW ELECTRONIC DATA REPORTING REQUIREMENTS, (29 CFR § 1904.35(b)(1)(i)), effective August 10, 2016,  also restrict an employer’s ability to impose a blanket demand of post-injury drug testing. OSHA considers such a blanket rule to be retaliatory and to discourage employee reporting of workplace injuries. Employers can avoid claims of retaliation by a careful review of their current policies and drug tests.

OSHA’s goal is to encourage employers to establish “reasonable procedures” for deciding when to test an employee once they are made aware of a workplace incident. A blanket requirement for drug testing for all reported injuries would require drug testing after injuries such as bee stings, repetitive strain injuries, injuries caused by lack of machine guarding, or a machine or tool malfunction, that may be unrelated to any employee impairment. OSHA is concerned that employees who do not want to be drug tested are deterred from reporting such incidents.

Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

REPLACING A BLANKET RULE

Instead of a blanket rule that required drug testing for all workplace injuries, employers may minimize the risk of a retaliation claim by asking:

(1) Is there a reasonable possibility that drug use by the reporting employee was a contributing factor to the illness or injury? and

(2) Is the method of testing  able to accurately identify impairment by drug use?

The days of blanket, post-accident drug testing policies may be over, and a shift to “reasonable suspicion” testing may be the growing trend. While the new Rule does not explicitly condemn blanket-testing, employers who maintain that policy, post-August 2016, will need to be prepared for heightened scrutiny when reporting workplace incidents.

Secondly, the type of testing will be another highly litigated issue moving forward. Less-intrusive urine screens are often preferred over a blood test; but given the new Rule’s emphasis on identifying impairment at the time of the incident, the type of testing will need to be re-examined.

While urine screens are useful for determining the presence of illegal drugs in an individual’s system, most urine testing does not give a quantifiable metabolite level in the employee’s system. What does that mean? The test can show the prior presence of drugs, but not how long ago they were ingested, or if the employee would have been under the influence at the time of the accident. Toxicologists are able to determine an individual’s blood alcohol content (BAC) through a urine screen, but a blood test may be needed in order to determine recent ingestion and impairment by many types of illegal drugs.

OTHER REGULATORY OBLIGATIONS

Employers in industries subject to other specific federal and state statutes/regulations that require drug testing, such as the United States Department of Transportation, will not be affected by OSHA’s new Rule on testing.  The testing required by a different regulation is not considered “retaliatory.” It is still unclear  how OSHA’s new Rule will apply to  employers who participate in state drug-free workplace programs that require or merely permit blanket post-accident or injury testing.

Obtaining employee consent at the beginning of employment for post-accident drug testing will  still help protect the employer from invasion of privacy claims. However, it has not yet been litigated whether such consent would provide any defense to the new OSHA no-retaliation scrutiny of blanket post-injury policies.

Hall Booth Smith attorneys are ready to advise employers on how to prepare and defend the issues that will arise based on OSHA’s new Regulations through the HBS employment, worker’s compensation, and government practice groups.