There are major developments regarding the Revised Recording and Reporting of Occupational Injuries and Illnesses Regulations, which incorporate highly controversial drug testing and safety incentive program restrictions.
In May 2016, OSHA issued a final rule which revised the Recording/Reporting regulations. This final rule, generally effective Jan. 1, 2017, requires certain employers to electronically submit to OSHA the injury and illness information that they are already required to maintain.
But most significantly, the final rule also includes much more — provisions that prohibit employers from retaliating against workers for making accident reports which OSHA somehow now interprets as restricting automatic post-accident drug testing and safety incentive programs.
The anti-retaliation provisions were to become effective on Aug. 10, 2016 but now have been postponed until Nov. 1, 2016. There is some question as to the legality of these anti-retaliation provisions. Until the new rule becomes effective, the only redress an employee has to advance an OSHA discrimination claim is the filing of a complaint alleging discrimination under OSHA regulation Section 11(c). After the new provisions become effective, OSHA will be able to cite an employer under its traditional citation and penalty scheme. This may require rehiring the discharged employee with back pay and limit or curtail post-accident drug testing along with paying a citation penalty.
OSHA’s Commentary Regarding Post-Accident Drug Testing
While the anti-retaliation provisions require educating employees on their rights to report on-the-job injuries and illnesses without fear of retaliation by the employer, the commentary that accompanied the final rule is alarming employers.
OSHA explained that to obtain the appropriate balance, drug testing policies should limit post-accident testing to situations in which employee drug use is likely to have caused or contributed to the accident, and for which the drug test can accurately identify impairment caused by drug use. OSHA thinks there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury. This case-by-case determination for testing could expose an employer to an unrelated civil rights claim of discrimination for unequal treatment before the EEOC.
OSHA also addressed employer concerns that the final rule could potentially prevent an employer from complying with the drug testing requirements contained in workers’ compensation laws. In response, OSHA explicitly stated “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and testing would be permissible.” But, most states do not require automatic drug testing unless the employer is “voluntarily” participating in a state drug-free workplace program.
The OSHA commentary is just that — a commentary. Whether you revise your current post-accident drug testing program now is a business decision, not a compliance decision.
Obviously OSHA is concerned that mandatory post-accident drug testing will stifle an employee’s freedom to report an on-the-job injury. But, what does the employee have to fear — unless he or she was under the influence at the time of the accident. When the OSHA commentary is weighed against the greater need of getting drugs out of the workplace, it comes up second. Most employers have established mandatory programs to take the guess work out of determining who needs to be tested and to avoid claims of discriminatory treatment. A mandatory policy strives to treat all employees equally to remove any possible subjectivity from the process. OSHA seems to have lost sight of this purpose.
Maintain any automatic post-accident drug testing policy as long as you can demonstrate that you are not discouraging employees from reporting on-the-job injuries and illnesses and that you are not in any way discriminating against any employee who makes a report — stay the course for now!
Watch for further clarification by OSHA before the new implementation date of Nov. 1, 2016, including the interrelationship to state drug-free workplace programs. Also, watch for the outcome of the current Texas court case attacking OSHA’s authority to make these regulations.
Bob Dunlevey is a board-certified Labor and Employment Law attorney. He can be reached at 937.223.6003.