Employers Grapple with OSHA’s Bar on Blanket Post-Injury Drug Testing

Allen Smith, J.D. By Allen Smith, J.D. June 24, 2016

​​Drug testing may include urine tests.

Some companies are going to eliminate post-accident testing entirely in light of Occupational Safety and Health Administration (OSHA) comments regarding its recent electronic reporting rule. The comments prohibit across-the-board post-accident testing for anyone who is in a work accident. The rule takes effect Aug. 10. 

[Update: Enforcement of the rule's anti-retaliation provisions, including drug-testing provisions, was delayed until Dec. 1, 2016.]

These companies think it's the "only bulletproof approach" to OSHA's newly articulated enforcement position, according to Dale Deitchler, an attorney with Littler in Minneapolis.

Reporting Shouldn't Be Deterred

In its comments, OSHA stated that "blanket post-injury drug-testing policies deter proper reporting" of injuries to the agency.

OSHA noted that some businesses expressed concern that OSHA planned a wholesale ban on drug testing. The agency reassured employers that the final rule does not ban drug testing.

"However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses," OSHA said. "To strike the appropriate balance here, 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."

So, for example, it would not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury resulting from a lack of machine guarding or a tool malfunction, OSHA said.

Before a drug test is conducted, "there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness," OSHA said.

"While it is not entirely clear what OSHA meant by 'a reasonable possibility' or 'a contributing factor,' it appears that 'reasonable suspicion' testing would be acceptable under this standard," said Kathryn Russo, an attorney with Jackson Lewis in its Long Island, N.Y., office. " 'Reasonable suspicion' means that an employer has reason to believe that an employee has violated the employer's drug and alcohol policy and is based on current, specific observations of the employee's appearance, behavior, speech and breath and/or body odors."

Deitchler said OSHA's comments might be challenged in court, however, emphasizing that "nothing in the rule speaks to drug testing." He added that the comments themselves did not go through formal rulemaking.

Employers still can conduct other drug testing as long as it does not deter reporting, Deitchler remarked. That includes pre-employment drug testing and random drug testing. However, he recommended that employers be mindful of state law limitations.

Test only those who caused or contributed to an accident in some way, not everyone involved in the accident, Russo cautioned. Review the circumstances of the accident immediately before the decision to test to ensure that the accident was not caused by the employer, she added.

Interplay with Workers' Comp

A workers' compensation carrier may dictate drug testing, noted Mary LeAnn Mynatt, an attorney with Baker Donelson in Knoxville, Tenn. "This is the intersection of OSHA, workers' compensation and employment law regulations," she said. "Employers should carefully evaluate their drug-testing policies, balance competing interests, and think through ramifications and requirements."

She said OSHA recognizes the limits of its authority from superseding workers' compensation laws, so OSHA "thus allows employers to continue to post-accident drug-test when required by a workers' compensation law."



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