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New OSHA Rules May Restrict Post-Accident Drug Testing and Safety Incentive Programs

By Bruce B. Deadman

On May 12, the Occupational Health and Safety Administration (OSHA) published new rules relating to record-keeping, injury reporting, post-accident drug testing, safety incentive programs, and retaliation against employees for reporting an accident or injury. This article focuses on the last four items that become effective on August 1, 2016. All employers, regardless of size, should revisit their injury reporting, drug testing and safety incentive programs immediately to address these new rules.

Some commentators have opined that these rules are the death knell of mandatory post-accident testing. Time will tell if that is so, but it is clear that long-standing employer injury reporting, drug testing policies, and safety incentive programs will come under increased scrutiny because they are being categorized by OSHA as “retaliatory” in nature.

To that end, in the new rules OSHA grants itself broad authority to investigate and prosecute potential retaliation situations even in the absence of an employee filing a complaint.

Injury Reporting

OSHA’s commentary to the new rule states that:

“employers must establish a ‘reasonable’ procedure for employees to report work-related injuries and illnesses and [the new rule] clarifies that a reporting procedure is not reasonable if it would deter or discourage a reasonable employee from reporting.”

Neither the rule itself, nor OSHA’s accompanying commentary, gives employers much guidance as to what OSHA thinks a ‘reasonable’ reporting procedure is. However, the commentary suggests that a complicated policy, or one with rigid time limits for reporting an injury, could be considered unreasonable, particularly in instances where latent conditions that develop over a period of time are concerned.

Drug Testing

In many cases, the injury reporting requirement is inextricably tied to drug testing policies. OSHA’s thinking appears to be that if an employee is hurt on the job, while knowingly under the influence of alcohol or drugs, how likely is that the employee will report the incident in a timely fashion, or indeed at all? OSHA’s commentary provides additional insights:

“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 (OSHA appears to ignore situations where the employee’s impairment results in failing to install a guard or leads to a 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. Employers need not specifically suspect drug use before testing, but 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.”

This position is ironic in light of OSHA’s past regulatory efforts to ensure a drug-free workplace, which was largely responsible for many employers instituting testing policies in the first place.

The new drug testing rule exempts testing mandated by other federal laws (such as DOT testing requirements) or testing required by state Worker’s Compensation law. (Note: Wisconsin Statute 102.49(9)(c) allows for the suspension of Worker’s Compensation benefits for drug use), but does not explicitly require an employer to have a drug use policy unless it wishes to deny benefits pursuant to the statute. Therefore, it is unclear at best whether OSHA would find a broad testing policy to be exempt from the new rule.

Some commentators believe that a broad drug testing policy implemented in order to lower insurance premiums may also withstand OSHA scrutiny. Check with your Worker’s Compensation carrier to see if this may apply to you.

Incentive Programs

Incentive programs, such as those who reward individuals or groups for having no lost-time accidents, have been under fire from OSHA for some time, and the new rule makes it clear that OSHA is positioned to prosecute employers who are in violation pursuant to the authority it granted itself in the new anti-retaliation rules, (which also take effect on August 1). The theory, which appears to have some basis in fact, is that employees who stand to gain by not reporting an accident would be discouraged from doing so by virtue of the incentive program. Instead, OSHA advocates incentive programs that focus on positive activities such as suggestions for safety improvements, or achieving high scores on safety tests.

What Should Employers Do?

All employers, regardless of size, should immediately evaluate their injury reporting and drug testing policies, as well as any safety incentive programs they may have in place, to determine whether they are in compliance with the new rules, and if necessary, make appropriate changes.

The above is only the tip of a very large iceberg, and is another part of the Department of Labor’s concerted effort to change employment law in some very fundamental ways through administrative rule-making (some would say “executive fiat”) in the waning days of the current administration.

If you have any questions related to your injury reporting and drug testing policies, please contact your Davis & Kuelthau, s.c. attorney or Bruce B. Deadman at 920.431.2228 /