At the end of last year, OSHA began enforcing new regulatory rules expanding the requirements for employers’ reporting and submitting workplace injury and illness records. These new reporting requirements also contain new anti-retaliation regulations. These new provisions include the ability of OSHA compliance officers to issue citations based upon alleged retaliation, even in the absence of any employee complaint. A citation can be issued solely based upon the written requirements of the employer’s safety plan.
Unfortunately, the new anti-retaliation provisions may operate to make many current drug testing policies non-compliant and subject to sanction. The new rules prohibit an employer “from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.” Specifically, the new regulations prohibit universal drug testing of employees after every work-related incident.
OSHA’s new rule does not create a blanket prohibition on the drug testing of employees. It does, however, provide limitations on such testing. OSHA requires 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.” An employer seeking to utilize post-incident drug testing of employees must be able to show:
- Probable cause the work-related incident was caused by drug-related impairment (i.e., slurred speech, erratic actions, the smell of alcohol, etc.);
- The test will actually test for and identify the substance suspected in the impairment;
- The employer’s motivation in giving the test was not retaliation; and
- The test was not given as punishment or to embarrass the employee tested.
Employers are urged to review their current safety policies to determine if provisions relating to the drug testing of employees after a work-related incident are in conformity with the current OSHA requirements. If they are not, the offending provisions should be revised immediately.
Poyner Spruill partner Tom Davis has extensive experience defending OSHA citations, reviewing and revising safety programs and providing safety training. For questions about this alert you can reach Tom at firstname.lastname@example.org or 919.783.2816.