Drug Testing Alert - Enforcement Of New OSHA Rule Begins November 1

Volume 15, Issue 21
September 14, 2016

As many of you know, in the spring of 2016, the Occupational Safety and Health Administration (OSHA) issued a new final rule requiring employers to begin electronically reporting injury and illness data. This portion of the rule's requirements will be phased in during 2017 depending on your industry and how many employees you have. You can find more information here.

This recordkeeping rule has another, more pressing component for employers to consider - OSHA's new declaration that "blanket post-injury drug testing policies deter proper reporting" of injuries and will be considered retaliatory under the new rule. This position accompanies OSHA's efforts with the new rule to "ensure that the injury data on OSHA logs are accurate and complete" by strengthening its prohibitions against retaliation towards employees who report injuries and illnesses. The new rule "prohibits employers from discouraging workers from reporting an injury or illness" by: (1) requiring employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarifying the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and (3) incorporating the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

OSHA seeks to "target[] employer programs and policies that, while nominally promoting safety, have the effect of discouraging workers from reporting injuries and, in turn leading to incomplete or inaccurate records of workplace hazards." OSHA has seemingly concluded that blanket post-accident drug testing policies - conducted for years by many employers to improve safety - only "nominally promot[e] safety" and will now be seen as retaliatory. OSHA maintains that the "final rule does not ban drug testing of employees" and explains its new position as follows:

  • To strike the appropriate balance here, 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. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety. 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. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

Finally, OSHA clarifies that it will not penalize employers who conduct post-accident testing pursuant to state or federal laws that apply to their industry or certain types of employees.

The anti-retaliation provisions of the new OSHA rule became effective on August 10, 2016. However, enforcement has been delayed until November 1, 2016 to allow OSHA time to perform "outreach" and develop "educational materials and enforcement guidance" on the new rule. In the meantime, OSHA's new position on post-accident testing requires Nevada employers to consider whether changes are needed to their substance abuse policies. As we discussed in a recent article about drug testing, the legal landscape has become very complicated in this area and change is likely needed. Any KZA attorney can assist you on this topic and we look forward to addressing any questions you may have.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.