Post-Accident Drug Testing Ends November 1, 2016… Are You Ready?
According to the Occupational Safety and Health Administration (OSHA), it will soon be a violation of OSHA regulations for employers to enforce policies that call for across-the-board drug testing after an employee has a workplace accident or injury. Effective November 1, 2016, "post-incident" drug testing must be limited 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." This is a perplexing new development for many employers, especially in a year where record numbers of employees are testing positive for workplace drug use.
In regulations first published on May 12, 2016, and now set to go into effect on November 1, 2016, OSHA has taken a new and aggressive position with regard to drug-free workplace policies and testing. In its commentary associated with the new regulations, OSHA expressed the view that across-the-board post-accident/injury drug testing should not be utilized by employers because "the evidence…shows that blanket post-injury drug testing policies deter proper reporting [of accidents and injuries]." OSHA's rationale for the new regulation of drug testing is its view that anything that has the potential to deter an employee from reporting an injury should not be an authorized employment practice. It appears that OSHA is more concerned with employers potentially deterring reporting, than deterring drug use in the workplace.
This development is particularly troubling for employers at a time when drug use in the workplace appears to be on the rise. In a study published on September 15, 2016, it was reported that a record number of employees tested positive for illegal drugs in workplace drug tests. Approximately 4% of the more than 11 million drug tests sampled were positive for some illegal drug. Almost half of the positive tests showed evidence of marijuana use and positive drug tests for heroine have increased nearly 150%.
Although the OSHA commentary states that the new regulations are not an outright "ban" of post-accident testing, it is difficult to square the statement with the new restrictions. The new regulations 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." The devil, as usual, is in the details. OSHA's new position on post-incident drug testing causes three core problems for employers: 1) converting all post-incident testing into "probable cause" testing; 2) limiting the kinds of testing available to employers; and 3) regulating how policies are drafted. Each of these issues is highlighted briefly below.
When OSHA's new position is reviewed in detail, it becomes clear that the end result is essentially to require all drug testing in the workplace (other than random testing allowed or required by other laws) be based on probable cause. Although OSHA states in the preamble to the regulations that its new rules do not require actual suspected drug use in any particular situation, the commentary goes on to say "there should be a reasonable possibility that drug use ... was a contributing factor." As a practical matter for employers attempting to both comply with new OSHA regulations and enforce its own drug testing policy, it is very difficult to discern any real difference between "suspected drug use" and a "reasonable possibility of drug use."
Even where an employer has met the threshold of finding a "reasonable possibility" of drug use, the new regulations add the additional obligation that the employer only performs a drug test if it is certain that the drug test performed will "accurately identify impairment." OSHA explains in the commentary to the rules that "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." This may mean that common methods of drug testing, such as hair follicle or even urine testing, are no longer sufficient forms of testing to meet OSHA standards.
Finally, although it is only mentioned in a parenthetical way in the new OSHA rules, it appears that these new restrictions are aimed not only at employers' actual practice of drug testing, but also at drug testing policies. The regulation suggests that "threatening" employees with a post-incident drug test could also deter reporting. It appears that OSHA is implying that even if an employer has not had occasion to actually conduct post-incident drug testing, simply maintaining a policy which states that employees engaged in a workplace accident or suffers a workplace injury, such a policy itself may be considered an unlawful "threat."
A legal challenge was filed against OSHA on July 8, 2016, challenging the agency's authority to issue the new regulations. Despite the lawsuit, the date for employers to comply is fast approaching. Employers are encouraged to undertake a thorough review of their drug testing policies, practices, and procedures.
For more information on OSHA standards, contact Paul Sinclair
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This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.