• New OSHA Rule May Impact Drug Testing Policies
  • August 19, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • New workplace injury and illness reporting requirements from the Occupational Safety and Health Administration, about which we provided a general overview in our May 2016 E-Update, may require revisions to workplace drug testing policies.

    OSHA’s Comments on Drug Testing Policies. As we mentioned previously, any procedure established by the employer for employees to report workplace injuries and illnesses must be reasonable and cannot deter employees from making such reports. The final rule does not specifically address drug testing policies; however, in the commentary to the final rule, OSHA states that drug testing policies that automatically require post-accident testing are prohibited, as OSHA believes that such policies deter reporting. Specifically, OSHA states:

    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.

    Thus, according to OSHA, “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.” (Emphasis added). OSHA goes on to provide examples of situations in which drug testing would not be considered reasonable: when an employee “reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”

    In these comments, OSHA does recognize that employers must comply with federal or state laws or regulations that require blanket post-accident drug testing - such as Department of Transportation regulations.

    Suggestions for Employers. What does this mean for employers? Drug testing policies should be reviewed to make sure that any post-testing requirements are appropriately tailored - such as to situations where the employee may have caused or contributed to the accident, or where the employer has a reasonable suspicion that the employee was impaired at the time of the accident. Some employers may be able to sustain a broader testing obligation depending on whether a defensible argument can be made that the testing is required by workers’ compensation programs or specific safety concerns, for example. Those employers should expect that they may be challenged by OSHA with regard to the broader policy, and be prepared to establish that the policy does not, in fact, deter reporting or constitute retaliation for reporting.

    Delay in Effective Date. OSHA has announced that it will delay enforcement of the new reporting rule, which was originally supposed to take effect on August 10, 2016, to November 1, 2016. This delay is intended to allow OSHA to conduct more outreach and education for employers.