OSHA finds “under recording” is a serious issue in the workplace and is seeking to ensure completeness and accuracy of workplace injuries in all data collected by employers and reported to OSHA. Updated rules for reporting work place injuries and illnesses are scheduled for enforcement beginning November 1, 2016.  Employers and administrators need be aware of these changes, of which there are three requirements:

  1. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.
  2. Procedures for reporting work-related injuries or illnesses must be reasonable and not deter or discourage employees from reporting.
  3. Employers are prohibited from retaliating against employees for reporting work-related injuries or illnesses.

I.  Mandatory Post Injury Drug Testing Prohibited?

A.  OSHA Fines

OSHA finds that mandatory or blanket post injury drug testing policies, screening and certain incentive programs deter reporting of injuries and can be in violation of OSHA policy. In these situations, OSHA may issue steep penalties for each violation, up to $7,000.00 per violation, or for willful violations, up to $70,000.00. OSHA advises these penalties will increase substantially to a high end of $124,712.00 in the near future.

B. OSHA Rules and State Laws           

An employer conducting any testing in compliance with state or federal laws or regulations is not deterring the reporting of injuries or engaged in retaliatory conduct. OSHA rules do not prohibit such testing. Also, OSHA is prohibited from superseding or affecting state workers’ compensation laws. OSHA rules regarding post-injury drug testing may initially appear in conflict with state workers’ compensation laws creating an issue as to which shall govern. Generally, drug testing is not mandatory under state workers’ compensation laws though intoxication can be used as a defense — compensation may be denied if the employee’s intoxication is the proximate cause of the employee’s accidental injury, or at the time of the work injury, the employee was so intoxicated that the intoxication constituted a departure from employment. Thus, state statutes invite employers to conduct post-injury drug screening and in some cases even set forth the protocol. However, OSHA does not believe a conflict exists and OSHA rules apply when testing is not mandatory.To determine intoxication often involves on site or contemporaneous testing for alcohol, cannabis and other intoxicating compounds that may be found in the employee’s blood, breath or urine at the time of the accidental injury. It is recognized that if there is a .08% or more by weight of alcohol in the employee’s blood, breath or urine, or any evidence of impairment due to the unlawful and unauthorized use of cannabis, a controlled substance or intoxicating compound, as defined by one of the controlling Acts, or if the employee refused to submit to a post-injury drug test, then a rebuttable presumption may exist that the employee was intoxicated and the intoxication was a proximate cause of the employee’s injury. Many employers blanket test injured workers when an accident is reported or medical treatment is requested to avail themselves of the intoxication defense. Since state laws do not require testing but simply provide an intoxication defense, OSHA rules may apply to such policies and blanket testing may be a violation resulting in substantial fines. At a minimum, blanket post injury drug testing is a practice OSHA seeks to prohibit 

II. Drug Testing – Targeted At Cause And Impairment

OSHA has determined that although drug testing of employees may be a reasonable workplace policy in some situations, it also has the effect of intimidating workers with blanket or mandatory testing policies, irrespective of any potential role intoxication may have played in the incident. Accordingly, OSHA has stated that if an injury or illness is “unlikely” to have been caused by employee intoxication, or if the method of testing does not identify impairment but only use at some time in the recent past, requiring drug testing may inappropriately deter reporting and may constitute an adverse employment action. The OSHA rules mandate that employers limit post-incident testing to situations in which the employee’s drug use is as follows:

    1. “likely” to have contributed to the incident; and
    2. that the drug test can accurately identify “impairment,” not just presence is the employee’s system.

This is a two-pronged test and the crux of the OSHA rule. Thus, there must be a reasonable belief by the employer that drug use was “likely” to have caused the accident, and testing must be able to measure impairment. Although there is general agreement that reliable tests exist to measure impairment, most providers acknowledge that drug tests measure only recent drug use, and many employment drug tests are not designed to measure impairment. For instance, the body can retain THC, the intoxicative component in marijuana, in the system long after the impairment has dissipated. As such, OSHA rules disfavor mandatory or blanket testing following any work accident unless testing is by statute mandatory, and, when appropriately utilized, mandate only tests that can accurately identify impairment. OSHA does suggest in an effort to continue to monitor drug use in the workforce, employers may seek to compensate for OSHA’s approach by increasing their random drug testing programs in order to detect and deter illegal drug use before accidents occur.

III. Incentive Programs Must Not Discourage Reporting         

OSHA finds that employee “incentive” programs create a disincentive to reporting accidents. While acknowledging such programs might be well intended efforts by employers to encourage their workers to use safe practices, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety and may be in a violation of OSHA rules. Incentive programs which reward workers for achieving low rates of reported injuries and illnesses are disfavored. By way of example of what not to do, policies that involve prize drawings or bonuses on the basis of no reported injuries, from which workers who reported an OSHA recordable injury are excluded, are in violation of OSHA’s policy. OSHA references what they consider more positive incentive programs, which reward workers for activities like recommending safety improvements, do not have the same effect. Incentive programs must be structured in such ways to encourage safety in the workplace without discouraging the reporting of injuries and illnesses. Instead of using an incentive program that includes denial of a benefit because an employee reports a work-related injury, or disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting a work-related injury or illness, incentive programs should make a reward contingent on following legitimate safety rules, promoting work participation in safety-related activities, or identification of hazards or investigations of injuries. OSHA refers to a number of positive incentive programs including providing T-shirts to workers serving on safety and health committees, offering modest rewards for suggesting ways to strengthen safety and health, or throwing a recognition party at the successful completion of a company-wide safety and health training.

Proposed Policy Changes For Compliance         

Where testing is not mandated by state or federal law, employers must be mindful of OSHA protocol and act accordingly. Several proposed policies are as follows:

  1. Drug testing should be conducted when there is a reasonable belief that drug or alcohol use was “likely” to have caused the accident in question. If the injury or illness was unlikely to have been caused by drug use, any drug testing may be viewed as a deterrent to reporting, and in violation of OSHA policy resulting in substantial fines.
  2. If the determination is made that drug use “likely” caused the accident in question, then, the employer must ensure the method of drug testing can or will identify impairment, not simply use. If the drug test cannot accurately identify impairment, it too could be in violation of OSHA policy resulting in substantial fines. To strike the appropriate balance, drug testing policies should be “targeted:” a) limited to situations in which employee drug use is likely to have contributed to the accident, and b) designed to accurately identify impairment caused by drug use.
  3. Incentive programs must be contingent on instruction and/or following safety rules, programs and promotion of worker participation in safety-related activities. OSHA disfavors incentive programs that discourage employees from reporting injuries or illnesses and may be in violation of OSHA policy, resulting in substantial fines. If you have any questions or would like further information and/or analysis, please do not hesitate to contact any of our attorneys.
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