On January 1, the federal Occupational Safety and Health Administration’s (OSHA) new recordkeeping and reporting rule took effect. The main impact of this rule requires employers to electronically file annual injury and illness reports, which will be placed in a publicly accessible database. However, buried in the final rule’s explanation last year, OSHA questioned the ability of employers to conduct automatic post-accident drug or alcohol testing.
The discussion arose over the anti-retaliation provisions of the new recordkeeping rules. OSHA correctly stated that employers may not retaliate against employees for reporting workplace injuries to their employers. The agency then included a new interpretation stating that some employer-sponsored post-accident drug and alcohol testing programs could be retaliatory because they would deter or punish employees who reported injuries by subjecting them to testing and possible disciplinary action.
The interpretation is not part of the final rule, and is only a policy statement. OSHA has not yet attempted to enforce this position, and given the impending change in administrations, it may not be inclined to do so. If OSHA cites an employer on the basis that it conducts post-accident testing, this will surely trigger a legal challenge. OSHA would have to demonstrate that the employer retaliated against the employee. The interpretation makes clear that post-accident testing is not per se retaliatory. In other words, the employer would have to be shown as having no “objectively reasonable basis for testing” in order to be found in violation of the new rule. If the employer shows that there was some reasonable basis for believing that drug or alcohol use by the reporting employee could have contributed to the injury or illness, it can proceed with the testing.
The interpretation also includes an exception for blanket post-accident testing conducted under the terms of a state drug-free workplace program. This would apply in a number of states where employers receive Workers’ Compensation premium discounts in return for conducting mandatory post-accident drug testing.
Employers should react to the OSHA interpretation by treating post-accident testing similarly to the way they treat reasonable cause drug and alcohol testing. The employer should compile some documented analysis of whether drugs or alcohol might have contributed to the situation. This does not mean that there needs to be clear evidence of such use, only that the circumstances as they appear at that time could have been caused by or contributed to through drug or alcohol use. The OSHA interpretation states that the employer has a heightened interest in determining if drug or alcohol use could have contributed to the injury or illness based upon the hazardous nature of the work being performed when the injury occurred. Given the fact that an accident occurred, this standard is not as high as it would be for reasonable suspicion testing.
There may be some circumstances where there is no reasonable possibility that the employee’s conduct contributed to the accident. For example, employers may choose not to require post-accident testing in response to a snake bite. In addition to this reasonable basis requirement for the test, employers should also make certain that other employees involved in the incident that caused the injury or illness are also tested, and not just the reporting employee.