Post-accident drug testing suddenly a sticky wicket

Rich Meneghello, BridgeTower Media Newswires

When the federal Occupational Safety and Health Administration (OSHA) announced its latest batch of rule changes a few months ago, most employers focused on the increased reporting requirements and the imminent public posting of injury information to the agency’s website. But OSHA also indicated that, once the new rules become effective, an employer that automatically conducts a post-accident drug test of an injured employee could be found in violation of federal law.

Because many employers have mandatory post-accident drug-testing systems in place, this interpretation has resulted in a lot of speculation and justifiable criticism. While there is a chance that portions of the new rules might be shelved before the effective date, employers would be wise to prepare for a new reality that could come as early as later this year.

The main thrust of OSHA’s new rules is a phased-in requirement that many employers electronically report their workplace injury data beginning in January 2017. However, the rules also require employers to establish a reasonable procedure for reporting work-related injuries and illnesses promptly and accurately, and note that a procedure is not “reasonable” if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

OSHA announced that automatic post-accident drug testing policies could run afoul of the law because they could deter reports of accidents and injuries. Therefore, the agency announced that employer drug-testing policies should limit post-incident testing to “situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

OSHA stated that 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 addition, the agency said that employers should avoid any type of drug testing that is designed in a way that may be perceived as “punitive or embarrassing” to the employee, as such a practice likely would deter injury reporting and violate the law.

Proposal is troublesome

OSHA’s interpretation conflicts with 30 years of drug-testing practice. Since inception of the Transportation Department’s mandated drug testing, automatically testing after certain clearly defined incidents (such as workplace accidents) has been considered a best practice for employers. The automatic process was considered fair and consistent because it prevented frontline supervisors from making arbitrary or discriminatory selections.

This new interpretation is troubling in a number of respects. In the 1990s, many states enacted laws providing workers’ compensation premium reductions or other benefits for employers if they implemented Drug-Free Workplace Programs (DFWPs), most of which required automatic post-injury or post-accident testing. OSHA’s interpretation appears to exempt post-injury testing conducted pursuant to these DFWPs, but because many of these programs are voluntary and not mandatory, it is not clear whether an employer can escape liability by pointing to its participation in a DFWP.

Second, OSHA’s interpretation appears to be scientifically unsound. While the agency announced that post-accident drug tests might only be permitted if they can accurately identify a drug impairment, most employers know that drug tests can legally establish only the presence of unlawful drugs and not “impairment.”

Third, the agency has not yet clarified what an employer is supposed to do if a collectively bargained drug-test provision exists in a union contract. For now, employers should consider possible contract changes. However, absent further guidance and the resolution of pending legal challenges, it seems unwise to open contracts to modify drug testing provisions.

What’s next?

The effective date of the new rules was supposed to be Aug. 1. However, in July, a group of concerned employers filed suit against them and subsequently requested an injunction blocking implementation. The case is pending. As a reaction to the pending lawsuit, OSHA extended the effective date from Aug. 1 to Nov. 1, 2016.

Even if the legal challenges succeed, most expect that some aspects of the new rules will survive. Unfortunately, at this point, OSHA has not provided enough guidance to craft meaningful responses to the rule changes. We await further guidance and clarification.

Meanwhile, as we sit in this period of uncertainty, monitor the July 8 lawsuit to determine if OSHA clarifies its positions prior to Nov. 1. I suggest that employers answer the following questions in order to help assess action plans:

Is post-accident drug testing conducted in order to comply with Transportation Department or state DFWP requirements?

Should there be participation in workers’ compensation DFWPs to gain protections?

Should testing take place only after recordable injuries or after other events such as property damage, unsafe behavior, etc.?

Should testing triggers be added, and if so, which triggers are simple enough that immediate supervision is competent to recognize them?

Is it practical to implement a program following OSHA’s “reasonable suspicion-light” standard with frontline supervision?

If so, what supervisor and HR training would be required?

Consider these questions before Nov. 1 and be prepared to act in accordance with any legal developments and further OSHA clarification.

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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter – @pdxLaborLawyer.

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