August 5, 2016

OSHA’s New Reporting Rules – Part 2:  Employee Rights and Post-Accident Drug Testing 

On May 12, 2016, OSHA published its final rule on electronic reporting of workplace injuries and illnesses.  This rule contains two significant provisions.  This first provision requires that certain employers submit workplace accident reports electronically. This provision becomes effective January 1, 2017, and was the subject of a previous legal update. The new rules’ second significant provision requires that employers put in place workplace accident reporting policies that are reasonable and do not deter or retaliate against employees who report workplace accidents.  Although this provision was originally set to take effect on August 10, 2016, OSHA has announced that enforcement of this provision will begin November 1, 2016.  This delay in enforcement does not mean employers should sit idly by.  The new rule warrants immediate evaluation of post-accident drug testing policies to ensure compliance. 

Under its new rule, OSHA has taken the position that automatic, mandatory drug testing following any job-related or workplace accident discourages employees from promptly and accurately reporting such incidents.  In addition, OSHA believes that such testing may serve as retaliation against an employee who properly reports such an accident. As a result, OSHA has taken the position that automatic, mandatory post-accident drug testing may run afoul of its new rule.  Accordingly, OSHA has advised that post-accident drug testing should be performed only in situations where it appears that drug use was the direct cause of, or a contributing factor to, the accident.  As a result of OSHA’s new rule, employers now must consider when to require a post-accident drug test and are encouraged to consider revising their policies and procedures to ensure compliance with the new rule.

Additionally, OSHA has indicated there may be issues with drug-testing processes in general.  While reliable tests exist to measure alcohol-related impairment at the time of an accident, the same is not always true with drug-testing.  Unlike alcohol testing, which can accurately measure impairment at the time of the accident, drug tests generally tend to measure “past” drug use, in many cases disclosing evidence of drug use that occurred several weeks prior to the accident.  For example, a person may test positive for marijuana that was smoked or ingested up to a month  prior to the accident.  In addition, a positive drug test does not necessarily indicate impairment at the time of the accident.  OSHA has determined that drug testing that does not identify impairment at the time of the accident, but only drug use at some time in the past, may be a violation of OSHA’s new reporting rule.  As a result, employers who have established a narrowly-tailored drug testing policy should also ensure that they perform drug testing designed to detect impairment at the time of the accident.  This may require consultation with drug testing professionals to arrange for a specialized series of tests following a job-related accident.

After November 1, 2016, OSHA may cite employers for post-accident drug testing policies and/or procedures that are deemed too broad or retaliatory of employees who report work-place accidents.  Fines for OSHA citations can range from $7,000 per violation up to $70,000 for a willful violation of the rule.  Starting in November of this year, those penalties are set to increase to $12,471 per violation up to $124,709 for willful violations.

Note that OSHA cannot prevent employers from complying with other federal or state laws, and an employer mandating post-accident drug testing in accordance with such laws is not retaliating against its employee. As a result, employers who are testing employees after an accident in order to comply with a more specific federal or state law or regulation should continue to do so.  Examples of this would be testing mandated by workers’ compensation laws, or testing required by a Department of Transportation.  Barring such an exception, employers should reevaluate their drug testing policies and procedures to ensure compliance with OSHA’s new rule.

This e-mail is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship.  If you have any questions about this information, please contact your attorney at Martin, Browne, Hull & Harper, P.L.L. at 937-324-5541.

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