On May 12, 2016, the U.S. Occupational Safety and Health Administration (OSHA) published its new final rule to “Improve Tracking of Workplace Injuries and Illnesses.” The new rule is meant to prevent employers from discriminating and retaliating against employees who report workplace related injuries and illnesses. The commentary to the rule says:
- Employers must have a reasonable procedure for employees to report work-related injuries and illnesses.
- An employer’s reporting procedure cannot deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.
- An employer’s blanket or automatic post-accident testing policy is prohibited and will be viewed as taking an adverse action against, retaliating against, or discouraging employees from reporting accidents.
- While employers need not specifically suspect drug use before testing, there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing, and, even then, the testing should be limited to only the employee who caused the accident rather than everyone involved.
Although the new rule does not prohibit all post-accident/post-injury drug testing policies, the commentary makes clear OSHA’s position that the circumstances of some accidents make it unlikely that drug use contributed to an accident. Some examples are:
- After an employee reports a bee sting;
- When an employee has a repetitive strain injury;
- After an injury caused by a lack of machine guarding; or
- When a machine or tool malfunctions.
The rule acknowledges that many employers implement post-accident/post-injury drug testing policies because they are in states that offer workers’ compensation premium reductions for enacting Drug Free Workplace Policies. Compliance with these workers’ compensation programs or other state or federal laws or regulations requiring post-accident/post-injury or reasonable suspicion testing are still permitted.
In light of OSHA’s new rule, it would be prudent to review your drug testing policy to ensure that it does not violate OSHA’s new rule. Employers should contact employment counsel if they have concerns over whether their policies comply with the new rule.