Just over two years ago, the federal Occupational Safety and Health Administration (OSHA) published rules that more than suggested employers could no longer have mandatory post-accident/injury drug testing. The rule amended 9 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.
OSHA viewed a post-accident mandatory drug test as a deterrent to employees reporting injuries due to their fear of being tested. Marijuana use can be detected days, weeks, or more after use and cannot measure impairment at any given time.
Another part of the 2016 rule looked to address certain employer incentive programs (typically referred to as a rate-based systems) that OSHA believed also had the effect of discouraging the reporting of injuries, illnesses, and such. These rate-based systems withhold a prize or bonus if an employee reports an injury or accident.
The prohibition of mandatory post-accident drug testing forced employers to change drug testing practices and handbook policies and seemed counter-intuitive to proactive workplace safety. It now seemed employers would have to make injury by injury, accident by accident, and person by person determinations as to whether this long-standing type of substance abuse test should be conducted. The relatively objective practice of “test them all” now became a more subjective review of who should be tested. Issues of protected class discrimination could come into play if an employer had to apply their judgement to accident situations subjectively.
Now comes OSHA’s walk back on how the Obama Administration rule should be interpreted. Last week OSHA issued a Standard Interpretation 1904.35(b)(1)(iv) “clarifying” how the 2016 rule should be interpreted.
First off, it restores employer’s right to have safety incentive programs as long as they are not perceived to penalize employees for reporting accidents or injuries (also called incidents).
Second, it reaffirms that employer substance abuse testing is permissible including:
- Drug testing unrelated to the reporting of a work-related injury or illness
- Drug testing under a state workers’ compensation law
- Drug testing under other federal law, such as a U.S. Department of Transportation rule
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Under this updated guideline employers are advised to conduct drug testing consistently and on any employee whose conduct may have contributed to the accident – not just the employee who may have been injured. This is not a total reversal but allows employers to more freely implement a more objective substance abuse test process that would test all parties involved in an accident.
Sources: OSHA Standard Interpretation 1904.35(b)(1)(iv) Seyfarth Shaw OSHA Clarifies Position on Lawful Post-Incident Drug Testing and Reverses Course on Safety Incentive Programs By Mark A. Lies, II, Brent I. Clark, Adam R. Young, and Craig B. Simonsen