Will OSHA Prohibit Post-Accident Testing?

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In May 2016, as part of an overarching rule to improve tracking of workplace injuries, OSHA dropped a proverbial bombshell by overtly implying that employers should not have blanket policies requiring post-accident drug testing.

Although the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address and prohibit mandatory post-accident drug and alcohol testing, OSHA’s commentary that accompanied the final rule opines that agency’s view the mandatory post-accident testing deters employees from reporting  workplace safety injuries, and employers who continue to operate under such policies will face enforcement scrutiny.

OSHA’s specific commentary is as follows:

“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.”

OSHA goes on to state further in its commentary:

“. . .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. 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. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”

For employers with operations in the following states, OSHA’s stance aligns with the drug free workplace laws in these states which already require that there must be reasonable suspicion that the employee’s action directly caused the accident before a post-accident test will be allowed:

  • Alaska
  • Arizona
  • California
  • Connecticut
  • Florida (voluntary law)
  • Georgia (voluntary law)
  • Maine
  • Minnesota
  • Mississippi (voluntary law)
  • Montana
  • New Jersey
  • Rhode Island
  • Vermont
  • West Virginia

Please note that OSHA acknowledges that an employer who conducts drug testing to comply with the requirements of a federal or state regulation will not be considered in violation of the rule.  In these cases, the testing is being completed to fulfill another regulation; thus, it is not a deterrent for reporting an accident.  Furthermore, US DOT employers cannot use this OSHA rule to waive their responsibility to perform post-accident testing pursuant to their agency’s regulation.

The new OSHA rule has already generated its first lawsuit.  The National Association of Manufacturers, Associated Builders and Contractors Inc. and similar groups sued OSHA in Texas federal court on July 11, 2016.  These employer groups content that OSHA overstepped its boundaries with this rule, saying the new rule contains anti-retaliation provisions that go too far in limiting post-accident drug-testing.  The suit contends the rule’s treatment of post-accident drug and alcohol testing limits an employer’s ability to investigate accidents.

Here are a few quotations from the complaint:

“There is no reliable evidence to support OSHA’s assertion that any category of safety incentive programs or post-accident drug testing programs lead to materially inaccurate reporting or underreporting of workplace injuries and illnesses,” the complaint says. “OSHA failed to consider how an OSHA rule prohibiting or otherwise limiting these longstanding types of safety programs would impact workplace safety and health.”

“The New Rule is arbitrary, capricious, and an abuse of discretion because it is without any basis in fact in that there is no reliable evidence to support OSHA’s assertion that safety incentive programs or post-accident drug testing programs lead to materially inaccurate reporting or underreporting,” the complaint says.”

The suit initially seeks a preliminary injunction to prevent OSHA from implementing the anti-retaliation provision that limits drug testing which are currently scheduled ot go into effect on August 10, 2016.

The suit further accuses OSHA of exceeding statutory authority, failing to follow required procedures, failing to conduct regulatory analysis, interfering with state workers’ compensation laws, and violating the Administrative Procedure Act by creating a rule that is arbitrary and capricious.

As the legal landscape continues to unfold, here are some observations on this rule:

  • OSHA DID NOT PROHIBIT post-accident testing with this regulation.  OSHA solely maintained that post-accident drug testing policies should be limited to situations when an employee’s POTENTIAL drug/alcohol use is likely to have caused the accident.  An employer does not have to specifically suspect drug or alcohol impairment before testing, but there should be a reasonable possibility drug/alcohol use would be a contributing factor.
    • An example when there probably would be grounds for conducting post-accident testing:
      • An employee is performing duties unsafely and becomes injured due to an action directly caused by not following the standard operating procedure.
    • An example when there probably would not be grounds for conducting post-accident testing:
      • An employee is lifting a heavy box and hurts his/her back.
  • OSHA appears to have muddied the waters on the issue of using drug tests to identify impairment at the time of the accident.  OSHA maintains that a post-accident test needs to be performed with a specimen that can accurately identify impairment.  When it comes to alcohol testing, the landscape is fairly well settled. Blood alcohol testing (and its analogue, breath) has well established levels in place that can identify impairment. These scientifically validated levels are the whole basis of our DWI/DUI legal system.  When it comes to drug testing, however, the water is certainly less clear. There are three major drug screening specimens for employment purposes (urine, hair, and oral fluid). Urine and hair windows of detection are far too broad to be used to define if a person was impaired at the time of collection. Oral fluid is an analogue of serum for the most part. A detectable level in oral fluid could certainly be used to help make the case of impairment at the time of collection since there is scientific evidence that drugs are not only impairing during the acute phase of use, but there is also an impairing effect during the elimination phase. Unfortunately, there is not considerable case law in place to defend this assertion like there is for alcohol levels and impairment.

Recommendations:

  • Seek legal counsel in regard to your post-accident drug/alcohol testing policy (do not just scrap your existing policy).
  • Consider oral fluid testing as your specimen of choice for post-accident drug testing.
  • Await breaking news on the above referenced lawsuit.

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The HireRight Blog is provided for informational purposes only.  It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety.  You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.

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Dr. Todd Simo

Dr. Todd Simo joined HireRight in 2009 and currently serves as the Chief Medical Officer working out of the Charlotte, North Carolina office. He has vast experience and training in Family, Occupational and Addiction medicine.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.