"I heard that OSHA has issued new regulations that change post-accident drug testing. It sounds like OSHA won't you let you do that anymore." This comment has been popular in HR and Safety Department circles the past few months, as commentators, consultants, and, yes, even some lawyers have been passing around alarming sound bites.
What is really going on here?
OSHA has updated (read: changed) regulations on reporting workplace injuries and illnesses, and the main rule-writing relates to electronic record-keeping for and by the government. Employers with twenty or more employees must begin to submit reports electronically; the deadlines and the required forms depend on whether the employer also has at least 250 employees.
The agency has also relied on a basic point—that the only data worth having is accurate data—to state a few seemingly simple and obvious rules on how employers talk to their employees about reporting injuries and illnesses:
- Involve employees in the recordkeeping system.
- Inform employees they have a right to report a work-related injury or illness, and establish a reasonable procedure for it to happen promptly and accurately. A procedure is not reasonable if it deters or discourages employees from accurately reporting.
- Tell employees they have a right to be free from retaliation; don't retaliate.
- Provide employees with access to your illness and injury records.
That seems simple and logical enough. Who would want uninvolved employees, an unreasonable reporting requirement, a deterrence to accurate reporting, acts of retaliation, or secretive files?
Of course, the devil always lies in the details when it comes to administrative regulations—it would not be the DOL, or its OHSA division, if there were not also directives on how to do these things. So, while not in the regulations themselves, OSHA has separately published its opinions on how to accomplish these objectives and, more importantly, on what it views as unacceptable barriers. Those opinions and views appear in responses to Frequently Asked Questions and in "Guidance" points that OSHA promises are "advisory in nature and informational in content, . . . [and] do not create any new legal obligations or alter existing obligations created by OSHA standards."
On the issue of a "reasonable" reporting procedure, OSHA now says that an employer must devise a way to "account for work-related injuries and illnesses that build up over time, have latency periods (i.e., time between exposure and appearance of symptoms), or do not initially appear serious enough to the employee to require reporting to the employer." Also, a procedure should not be "so difficult or complicated that a reasonable employee would be discouraged from reporting an injury or illness"—for example, by having to "report the same injury or illness multiple times to multiple levels of management." Again, simple enough.
On the issues of reasonableness and non-retaliation, OSHA will look at incentive, disciplinary, and drug testing policies to be sure they do not "discourage workers from exercising their right to report workplace injuries and illnesses." When would that happen? According to OSHA, an employer interferes with the right to report injuries or illnesses when it penalizes injuries instead of penalizing unsafe practices, and when it requires employees who make reports or are named in reports to undergo mandatory alcohol or drug testing, with no more questions asked.
OSHA believes that mandatory post-accident drug testing, applied in all situations without any assessment of whether the possibility of drug or alcohol use is indicated, discourages employees from exercising their "right" to report accidents. Who is going to report an accident that seems minor or might otherwise go unnoticed if he knows that making the report means going to a lab for a urine sample to be tested, OSHA worries.
How intrusive is OSHA really being here? First, OSHA is quick to state that its guidance on the topic does not affect drug testing rules under DOT authority. So, nothing about the new rule will change DOT drug and alcohol testing, post-accident or otherwise. Similarly, OSHA says that it will not issue any citation to an employer for post-accident drug or alcohol testing conducted under a state workers' compensation law or other state or federal law that regulates or covers testing.
Second, and more generally, OSHA acknowledges that post-accident drug and alcohol testing, even for non-DOT personnel, is appropriate where an employer sees "a reasonable possibility that employee drug use could have contributed" to the illness or injury, as opposed to when "employee drug use could not have contributed to the injury ... and testing would not contribut[e] to the employer's understanding of why the injury occurred." This is the principal part of the rule: where circumstances say alcohol or drug use could have been a factor, testing is appropriate; where no reason exists to think such use was a factor, testing is not appropriate.
But, isn't the whole purpose of post-accident testing to find out whether an injury (and it is usually an injury, not an illness) was caused by a workplace condition or by employee impairment? Isn't that extremely relevant to identifying corrective actions or precautions to undertake?
OSHA is telling employers that there is somewhat of a balance here and is answering these questions with "Yes, but..." Yes, but you need to exclude from mandatory testing situations in which there is simply no reason to think an employee's behavior or conduct on a particular occasion caused an injury to occur. Is this a latent injury from repetitive stress? Was the employee who would be tested merely a bystander? Was the injury based on clearly defective equipment the employee had no reason to notice? Each of these is a situation, OSHA is saying, where nothing suggests testing will add value.
On the other hand, it would be reasonable for an employer to require post-accident drug testing for a worker who reported an injury experienced while operating a crane or a forklift if the employee's conduct contributed to the injury. Employers need not specifically suspect drug use based on observations of impairment—OSHA is not directly merging post-accident with reasonable suspicion testing—but there should be a potential connection between possible impairment and the nature of the cause of the accident. It is early and the lines are still blurry, but it appears OSHA is permitting the right to test for drug or alcohol use when an employee's conduct or behavior could have caused an accident resulting in injury.
As with much in the regulatory world, it is hard to know where a Trump Administration will take agency rules and regulations. Formally eliminating a rule requires the same rulemaking process as creating a rule, meaning this particular OSHA regulation will not quickly disappear. But, again, OSHA's pronouncements regarding drug and alcohol testing appear in commentary and guidance publications, not in the rules themselves—and those can be revised and re-issued by new leadership within the DOL on much shorter notice. Will the position of OSHA and the DOL change yet again? As with everything in Washington, DC these days . . . stay tuned.
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