WARNING, THIS IS A LOT OF INFORMATION TO DIGEST, SO YOU MAY WANT TO REVIEW IT IN “CHUNKS”

The sections are:

  • History Update
  • The actual language of the regulation versus the Preamble
  • When may I conduct a Post –Injury Drug Test?
  • Building your policy –What is reasonable by OSHA?
  • A nice checklist to follow when developing your policy
  • Some Scenarios to review as to when you should and shouldn’t test

Dr. Donna R Smith, Regulatory Compliance Officer for Workforce QA provided further clarification and an update around the bomb dropped by OSHA; at, you guessed it! – Our annual SAPAA meeting

History Update

  • August 1, 2016—Initial effective date
  • July 8, 2016–Lawsuit filed by employers and industry groups challenging portions of 1904.35 because it essentially prohibited routine post-accident drug testing and safety incentive programs.
  • July 13, 2016–OSHA delayed effective date to November 1, 2016
  • October 14, 2016–Court asked for additional briefing on lawsuit
  • October 18, 2016–OSHA again delayed effective date to December 1, 2016
  • October 19, 2016–OSHA issued guidance and interpretation of the final rule
  • Nov 10, 2016—OSHA issues Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35
  • July 11,2017–U.S. District Judge David L. Russell issued a one-page order granting a request by OSHA to stay the case, which the agency filed Monday without opposition from the business groups challenging the rule.

 OSHA indicated intent to propose additional changes, revisions to final rule

The Preamble and the actual language

 NOTE: Drug testing is not in the final rule text

  1. Preamble
  • It is in the Preamble to the rule that drug testing is discussed in the context of:
    • “a reasonable program” for reporting work-related injuries that does not discourage or deter reporting workplace injuries, and
    • discriminating against an employee for reporting a work-related injury
  • OSHA identifies 3 types of employer policies that may be seen as discouraging/deterring work-related injury reporting or may be “discriminatory”
    • Disciplinary policies
    • Post-accident drug testing policies, and
    • Employee incentive programs
  1. Regulation language
  • 35 b. Implementation—(1) What must I do to make sure that employees report work-related injuries and illnesses to me?
    • (i) You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;
    • (ii) You must inform each employee of your procedure for reporting work-related injuries and illnesses;
    • (iii) You must inform each employee that:
      • (A) Employees have the right to report work-related injuries and illnesses; and
      • (B) Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses; and
    • (iv) You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.
  1. OSHA rule does not apply to:
  • DOT-mandated post-accident drug testing
  • Testing conducted IAW state Workers’ Compensation Drug Free Workplace polices
  • Testing conducted under state laws or regulations, whether mandatory or voluntary
  • Non-injury post-accident/post-incident testing (vehicle accident, property damage, safety violation
  • Random, reasonable suspicion, pre-employment testing

When Can I Conduct Post-injury Drug Testing?

  • Employers may conduct drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury
  • Employers must have an objectively reasonable basis for conducting testing
  • Drug testing without an objectively reasonable basis would likely discourage injury reporting, would not contribute to an understanding of why the injury occurred, and would constitute prohibited retaliation

Policy Development

Build Your Policy and Program by following what OSHA considers “Reasonable”

The factors OSHA will consider in determining reasonableness of drug testing are

  • Is there a reasonable basis for concluding that drug use could have contributed to the injury?
  • Are all employees involved tested in the accident—not just the injured employee?
  • Does the employer have a heightened interest in determining if drug use could have contributed to the injury due to hazardous work
  • Is the test capable of measuring impairment (only alcohol) at the time the injury occurred?
  • Can testing provide insight into why the accident/injury occurred?
  • Employer does not have to suspect drug use by the employee before testing, but there should be a reasonable possibility that drug use could have contributed to reported injury/illness
    • There is no requirement for individual reasonable suspicion; e.g. specific observable signs or symptoms of drug/alcohol use
  • Evaluation of other employees’ involvement in the accident/incident is important in ruling out their possible contribution to the accident/injury’s occurrence
  • If work involves safety-sensitive or hazardous functions, testing may be considered reasonably appropriate to rule out alcohol/drug use

A Good Checklist to Follow in Your Development

  1. Check State Workers’ Compensation DFWP regulations, including voluntary programs for WC Insurance premium discounts
  2. Check State DFWP statutes and regulations to ensure non-Federal post-accident testing you conduct conforms
  3. Identify policy language that could be considered “blanket P/A testing” with no individual incident evaluation of whether drug use could reasonably be a possibility to contribute to the employee’s injury
  4. Obtain a legal review of the policy to ensure State and OSHA compliance
  5. Specify objective criteria, in addition to the injury, which will trigger post-accident testing
  6. Ensure medical treatment is not delayed or contingent upon drug testing
  7. Use only breath or blood testing to determine alcohol concentration (not urine or saliva)
  8. Identify hazardous or high risk activities

Some other points to consider

  1. Post-accident testing is time sensitive
    • Testing decision about who to test and where testing will take place have to be made expeditiously
  2. Training of managers/supervisors who will be making post-accident testing decisions is essential
  3. Procedures need to be concise and consistent
  4. Testing of all employees involved in an injury accident whose actions, decisions, errors could reasonably impact the accident
  5. Some form of documentation of decision to test or not to test should be included in procedures
  6. To decide that an employer has violated 1904.35(b)(1) OSHA must show that the employer did not provide employees with a procedure for reporting work-related injuries, or that its procedure is not reasonable.
  7. It is a reasonable policy if not unduly burdensome and would not deter a reasonable employee from reporting
  8. Must allow reporting of work related injury within reasonable time after employee realized recordable injury, and in a reasonable manner

Some Helpful Scenarios

#1

Employer required Employee X to take a drug test after Employee X reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.

Question: Did Employer violate section 1904.35(b)(1)(iv) by subjecting Employee X to a drug test simply because she reported a work-related injury?

Answer: YES. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury. If drug use could not reasonably have contributed to a particular injury and the employer has no other reasonable basis for requiring a drug test, section 1904.35(b)(1)(iv) prohibits the employer from drug testing employees simply because they report injuries unless the drug test is conducted pursuant to a state workers’ compensation law or other state or federal law.

#2

Employee X was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee X to take a drug test.

Question: Did Employer violate section 1904.35(b)(1)(iv) for drug testing Employee X?

Answer: NO. Because Employee X’s conduct—the manner in which he operated the forklift—contributed to his injury, and because drug use can affect conduct, it was objectively reasonable to require Employee X to take a drug test after Employer learned of his injury. Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.

#3

Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers’ compensation premiums under the state’s voluntary Drug-Free Workplace program. Employer drug tests Employee X when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X?

Answer: NO. Drug testing conducted pursuant to a state workers’ compensation law, whether voluntary or mandatory, is not affected by section 1904.35(b)(1)(iv).

#4

Employer requires all employees who report lost-time injuries to take a drug test because the employer’s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers’ compensation law. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Would OSHA cite Employer for violating section 1904.35(b)(1)(iv) in these circumstances by drug testing Employee X to secure lower private insurance premiums?

Answer: NO. To maintain consistency between public and private worker’s compensation coverage in the same state, OSHA will not cite employers under section 1904.35(b)(1)(iv) who conduct post-accident drug testing under private party policies that mirror the applicable state workers’ compensation law.

#5

Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee X (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

 Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X pursuant to a collective bargaining agreement?

Answer: YES. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries absent a reasonable belief that drug use could have contributed to the injury or another reasonable basis for requiring a drug test. Although OSHA does not intend for section 1904.35(b)(1)(iv) to supersede other state or federal programs addressing post-injury drug testing of employees, collective bargaining agreements may not supersede section 1904.35(b)(1)(iv).