The Occupational Safety and Health Administration (OSHA) requires private employers[ii] to keep injury and illness records[iii] on their employees. To ensure thorough recordkeeping, OSHA also requires employers to instruct their employees to report work-related injuries. Employers should be careful to explain that this reporting requirement is a legal right and that they are prohibited from retaliating against those who report injuries. Employers must, therefore, establish “a reasonable procedure for employees to report these work-related injuries and illnesses promptly and accurately.” OSHA warns employers, “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
So, what sort of procedure would discourage an employee from reporting an injury? We are not left without guidance. OSHA has just issued an updated rule – with plenty of commentaries – explaining what it thinks would deter employees. And one of these opinions is this: that a blanket policy mandating automatic drug testing anytime an employee reports an injury would deter employees from reporting injuries. OSHA believes that employees view drug testing as an invasion of privacy and are “intimidated” by policies that automatically require employees to be drug tested when they report an on-the-job injury. Since employees could be intimidated by drug tests and may feel that their privacy is invaded, the mere fact of an automatic test constitutes “a form of adverse action against employees who report injuries or illnesses.”
It logically follows, then – according to OSHA – that employers should limit post-injury[iv] drug testing to situations in which employee drug use is “likely to have contributed to the incident” giving rise to the injury and for which the drug test “can accurately identify impairment caused by drug use.” OSHA provides a seemingly simple example: an employee who reports an injury from a bee sting should not be drug tested since impairment by drugs is not likely to have caused the person to have been stung by the bee.[v]
In conducting a determination as to whether drug use was likely to have contributed to the incident, employers need not “specifically suspect” drug use, but rather contemplate a “reasonable possibility” that drug use by the reporting employee was a contributing factor to the reported injury. No further guidance is given as to what qualifies as a “reasonable possibility.”
By this point, it will no doubt have occurred to thoughtful readers that this new prohibition on automatic post-incident drug testing will conflict with a number of state drug-free workplace laws. Some state laws require participating employers to conduct a drug test any time a worker reports an injury. How can an employer comply with both laws? OSHA found such concerns “unwarranted,” explaining that “[i]f an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and [OSHA’s] final rule would not prohibit such testing.” This, of course, is a non sequitur.[vi]
OSHA based its prohibition against automatic post-incident drug testing on the grounds that doing so would deter workers. The employer’s motive was irrelevant. Indeed, theoretically, even if the motive behind a drug screening policy is to encourage reporting of injuries, the policy would still violate OSHA’s new rule if the effect of the policy is to deter reporting of injuries. All that being said, employers must still live with this new mandate not to test automatically unless required by state (or federal) law.
When it comes to post-incident drug testing of employees,[vii] states fall into three categories: those that compel employers to test no matter what; those that give employers the discretion to test after an incident; and those that don’t have Drug Free Workplace laws at all.[viii] Arkansas is a good example of a state falling into the first category. Its Drug-Free Workplace[ix] law states, “After an accident that results in an injury, the covered employer shall require the employee to submit to a drug or alcohol test. . . .”[x] Notice how the law gives the employer no discretion: If an accident occurs, and if the accident causes an injury, you must test the employee. The law makes no comment on the question of what caused the accident. Was it due to drug-induced impairment? Or was it due to simple negligence? Or was it a pure accident, where nobody did anything wrong? It doesn’t matter. You must test the employee if she was injured. Under OSHA’s guidance, Arkansas employers can disregard OSHA’s new rule and continue automatic post-incident testing.[xi]
Arizona is an example of a state falling into the second category. Arizona’s Drug-Free Workplace law is permissive when it comes to post-accident drug testing: “[A]n employer may require the collection and testing of samples for any job-related purposes consistent with business necessity including: . . . Investigations of accidents in the workplace.”[xii] Notice the use of the word “may.” This means Arizona employers do not have to test after an accident. Indeed, Arizona’s law does not even mention injuries arising from an accident. It simply says employers have the discretion to test after an accident. According to OSHA’s guidance, because Arizona’s law is not mandatory, an Arizona employer can only drug test after an accident resulting in an injury if drug-induced impairment was “likely to have contributed to” the accident.
Let us consider one more example of a state falling into the second category: Minnesota. Minnesota’s Drug-Free Workplace law states in pertinent part:
Reasonable suspicion testing. – An employer may request or require an employee to undergo drug and alcohol testing if the employer has a reasonable suspicion that the employee:
(1) is under the influence of drugs or alcohol;
* * *
(3) has sustained a personal injury . . . or has caused another employee to sustain a personal injury; or
(4) has caused a work-related accident. . . .[xiii]
As you can see, Minnesota is similar to – although not quite the same as – OSHA’s new rule; both prohibit automatic testing. Minnesota requires reasonable suspicion. A mere accident alone will not justify drug testing; rather, the employer must reasonably suspect the employee “caused” the accident. But OSHA also requires Minnesota employers to determine whether the suspected impairment was “likely to have contributed to” the accident or injury. Minnesota employers will need to follow both Minnesota state law and OSHA’s rule.
The upshot is this: employers who participate in their states’ Drug-Free Workplace laws will need to take a close look at how those laws treat post-accident testing before determining whether to continue testing employees automatically after an injury occurs.
This new anti-retaliation provision of OSHA’s recordkeeping rules was originally set to go into effect on August 10, 2016; however, a consortium of manufacturers filed suit in Texas contending the new rule was unlawful. OSHA voluntarily delayed enforcement of the new regulation until November 10, 2016, and now, upon request of the Texas judge, has delayed enforcement until December 1, 2016.
[i] “OSHA” for short.
[ii] OSHA exempts eighty-two industry groups from this recording keeping requirement, ranging from religious organizations and independent artists to internet service providers and educational institutions. 29 CFR § 1904, Appendix A. These exempted industries are not subject to this new rule regarding post-accident drug testing.
[iii] For ease of reference, we will simply refer to “the reporting of injuries.”
[iv] OSHA uses the term “post-injury” and “post-incident” interchangeably although, technically, they are not. The latter encompasses the former; however, it is clear that OSHA means to prohibit automatic post-incident testing to the extent the reporting of a work-related injury or illness is implicated.
[v] Although one can easily think of a situation where drug impairment could have led to an insect sting. For example, a landscaping employee may very well have been intoxicated by a drug which led her to be careless in using mechanized landscaping equipment that, in turn, led to running over a nest of yellow jackets. In this case, drug testing would be entirely reasonable.
[vi] Latin for it does not follow or, put bluntly, that doesn’t make sense.
[vii] By private employers.
[viii] In those states, OSHA’s rule will undoubtedly apply.
[ix] Not every state uses the phrase “Drug-Free Workplace.” Some states use the phrase “Employer Alcohol and Drug-Free Workplace Act” or simply “Drug Testing of Employees.” We will use the term Drug-Free Workplace.
[x] A.C.A. § 11-14-106(a)(5).
[xi] Of course, this only applies to employers that have elected to participate in the state’s Drug-Free Workplace program. Non-participating employers will be governed by OSHA’s rule.
[xii] A.R.S. § 23-493.04.B.2 (emphasis added).
[xiii] Minn. Stat. § 181.951.
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