New OSHA Rule Effective Next Month – Are Your Drug-Testing Policies Placing You At Risk?

Certain provisions of the Occupational Safety and Health Administration’s (“OSHA’s”) new reporting Rule, which go into effect on August 10, 2016, implicate employers’ post-injury and post-accident drug-testing policies.  As the compliance deadline is swiftly approaching, employers are reminded to set time aside over the next few weeks to confer with counsel, review their policies, and revise as needed in order to avoid potentially costly enforcement action.

The new Rule provides that employers must, among other obligations, establish a “reasonable procedure” for employees to promptly and accurately report work-related injuries and illnesses.  The Rule prohibits this procedure from “deterring or discouraging” a reasonable employee from accurately reporting a workplace injury or illness, and it also requires employers to proactively advise employees that they will not suffer any retaliation for such reporting.

Although the final Rule does not specifically mention drug-testing policies, OSHA commentary makes clear that such policies will now face scrutiny because, according to OSHA, post-injury/accident testing has the potential to deter injury reporting. The Administration has indicated that—as of the August effective date—such testing will pass muster only if it is limited to circumstances where employee drug use likely contributed to the underlying incident and if testing methods are tailored to identify impairment during the incident (as opposed to identifying general prior drug use).

The full article below provides an overview of the relevant Rule provisions and discusses the practical implications of the same in order to help employers prepare for their pending new, and somewhat ambiguous, obligations.

Background

Back in May of this year, OSHA published its final reporting Rule, which (among other provisions) purports to “clarify[y] the existing implicit requirement” that an employer’s procedure for reporting work-related injuries and illnesses must be “reasonable” and must not “deter or discourage” employees from reporting.  The Rule incorporates the existing statutory prohibition on retaliation, and it now requires employers to proactively inform employees of their right to be free from retaliation when reporting work-related injuries and illnesses.  The full text of the final Rule is published in the Federal Register, available here.

Although the final Rule does not specifically mention drug testing, OSHA commentary clarifies its enforcement position on post-accident testing policies, indicating that such policies will now face scrutiny because they may deter injury reporting.  In this regard, the Administration has stated as follows:

Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.

(emphasis added).

The Administration went on to indicate that only narrowly tailored post-accident testing—i.e., testing where drug use likely contributed to the accident and where tests can accurately determine whether the employee was impaired at the time of the accident—will be immune from enforcement action under the new Rule:

[T]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.  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.

(emphasis added).

While the DOL characterizes the new Rule as an effort to “‘nudge’ employers to prevent workplace injuries” (Dep’t of Labor News Release (May 11, 2016)), many fear the Rule may have the opposite effect, ultimately limiting employers’ ability to detect and deter drug-related incidents that expose their employees to potential harm.  As discussed below, however, through carefully drafted policy language, employers can avoid testing in circumstances that may run afoul of the new Rule while still targeting incidents that raise suspicions that drug use may have been a contributing factor.

Practical Implications

In light of the new Rule and the Administration’s enforcement position, employers should consider revising their drug-testing policies to eliminate strict post-accident/post-injury testing.  As an alternative, employers should consider (in accordance with applicable state law) folding post-accident/injury testing into their reasonable-suspicion testing, with language clarifying that post-injury/accident testing will take place only where circumstances suggest the employee’s conduct has caused the accident or injury in question.  In addition, employers should consider adding policy language clarifying that—at least for post-accident/injury testing—they will utilize tests that measure only very recent drug use.

The foregoing measures arguably should, as required under the new Rule: 1) reasonably tailor testing to those workplace incidents where there is reason to suspect drugs and/or alcohol may have played a role, and 2) ensure related testing methods are designed to show whether the employee was in fact impaired at the time.  More specifically, by limiting testing to those circumstances where there is reason to believe the employee’s conduct was responsible for an accident or injury, employers are precluded from testing in any circumstance where it is clear the incident was caused by factors unrelated to employee conduct (e.g., faulty equipment, force majeure, etc.).  By further tailoring testing methods to measure only very recent use, employers may demonstrate that they are not testing with any over-reaching motive to “catch” employee drug use that is remote in time and thus unrelated to the incident in question.  Further, when it announced the new Rule, OSHA emphasized that drug testing performed by employers to comply with federal or state laws or regulations does not run afoul of OSHA regulations.

As the effective date of the new reporting procedures is quickly approaching, employers should dust off their drug-testing policies and undertake any remedial drafting necessary to ensure compliance.  If they have not already done so, employers additionally should be sure to promulgate safety policies setting forth reasonable procedures for reporting workplace injuries and/or illnesses and establishing zero tolerance for any related retaliation.  Employers should also review any incentive programs aimed at reducing workplace accidents/injuries to ensure such programs do not have the potential to deter reporting.

Finally, businesses should be aware that the new Rule also includes a “phase two,” which involves additional provisions governing external reporting that will impact certain larger employers as well as some smaller employers in select industries—including employers in the agriculture, utilities, construction, and manufacturing industries.  Beginning next year, impacted employers will be required to submit injury and illness data electronically through the Administration’s website.  Under the final Rule, OSHA will (with few exceptions) allow public access to such data, without affording employers any opportunity to explain the underlying facts and circumstances.  Regarding the rationale for the public-disclosure aspects of the new Rule, the Department of Labor (“DOL”) has stated, “OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.” These new external-reporting requirements do not take effect until January 1, 2017, but employers should take time now to understand whether, and which, obligations will apply to them and to discuss with counsel how best to disclose illnesses and injuries knowing that such disclosures are accessible to the public.

In the intervening weeks since the final Rule’s publication, it has faced much criticism over its arguably vague standards.  Many commentators also have questioned the Administration’s authority to publicize information that employers are required to report regarding workplace injuries and illnesses.  It certainly is possible that going forward, aspects of the new Rule may face challenges in court, and employers should stay tuned for any future developments.  At present, however, they should begin preparing for compliance, and seek legal advice to help navigate the murky waters.