Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury. Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny.
So what is “a reasonable procedure” for drug and alcohol testing and how can employers test for impairment following an accident? The previous version of § 1904.35(b)(1)(i) already required employers to set up a way for employees to report work-related injuries and illnesses promptly. The final rule adds new text to clarify that reporting procedures must be reasonable, and that a procedure that would deter or discourage reporting is not reasonable. OSHA’s commentary with regard to drug testing notes that, “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.” To eliminate that deterrent effect, OSHA maintains that 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. Employers need not specifically suspect drug or alcohol use or impairment before testing, but there should be a reasonable possibility that use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.
OSHA’s commentary provides examples of what it considers to be unreasonable testing: where 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. Employers should heed these guidelines in revision of their workplace accident and illness policies and be prepared to substantiate the basis for testing when a workplace incident results in drug testing.
For those employers who are required to test under the requirements of state or federal laws, such as U.S. Department of Transportation regulations or state workers’ compensation laws, continued testing is allowed under the new OSHA rules because conducting testing in those circumstances is not retaliatory.
Employers who do not comply with these new rules face serious penalties for each violation, especially since (as our prior post noted) OSHA has implemented increases that permit maximum penalties to over $12,000 per violation and over $120,000 for willful or repeat violations.