OSHA and Post-Accident Drug Testing
In August of last year, OSHA’s new final electronic reporting rule, including provisions regarding employee involvement in reporting work-related injuries and illness, was originally scheduled to become effective. This rule required that employers establish reasonable procedures for employees to report work-related injuries and illness, and employers may not adopt procedures that deter or discourage employees from making such reports.
OSHA’s response to comments discussing this rule’s effect on mandatory post-accident drug testing policies indicates that, when the final rule was published almost one year ago, OSHA viewed blanket, automatic post-injury drug testing policies with disfavor. It saw these policies as a procedure that could discourage employee reporting of work-related injuries or illness.
In its original publication of the final rule, OSHA noted that post-accident drug testing policies likely would be reasonable when the policy applied only to situations where drug use was likely to have caused the incident leading to injury or illness, or for where state or federal law requires post-incident drug testing. While the rule’s implementation was delayed until December 1 of last year, the rule’s anti-retaliation provisions remain in effect today.
How this rule will be enforced under the Trump administration is unclear at this time – partially due to the relatively recent approval of Secretary of Labor Alexander Acosta on March 30th and the continued vacancies of several key OSHA positions. There are some indications that OSHA may move back the July 1, 2017, electronic reporting deadline; however, the potentially delayed reporting deadline provides little guidance on how the anti-retaliation provisions of the rule will be interpreted and applied by OSHA.
Legal challenges to the final rule’s anti-retaliation provisions, based in part on OSHA’s stated position on post-accident drug testing policies, are pending in Texas and Oklahoma federal courts. Employers should be mindful of any decisions that come out of these cases, as well as any additional guidance issued by OSHA, in the next several months as they weigh how best to revise and update their drug testing policies to strike the appropriate balance between safety and avoiding potential retaliation investigations.