A new rule issued by the Occupational Health and Safety Administration (OSHA) has caused concern for some employers in regard to drug testing policies.
The rule, which took effect Jan. 1, initially called for certain employers to electronically submit their 2016 Form 300A to OSHA by July 1. Data from the Form 300A—an annual summary of workplace injuries and illnesses—subsequently would be posted on an OSHA website for public viewing. But a week before July 1, OSHA said the deadline would be extended to Dec. 1 to enable the new administration to review the electronic reporting requirements prior to their implementation.
The electronic reporting rule prohibits employers from retaliating against workers for reporting an injury or illness. It also requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by displaying the already-required OSHA workplace poster.
Noelle Abastillas, a senior labor and employment attorney at Kilpatrick Townsend & Stockton who counsels employers on drug testing and OSHA regulatory issues, says the new anti-retaliation rule broadens OSHA’s authority to prosecute retaliation claims on behalf of workers. Previously, OSHA could not pursue a retaliation claim against an employer unless the affected worker filed a complaint with OSHA within 30 days for the retaliatory act. With the new rule, Abastillas explains, OSHA can pursue retaliation claims against employers even if no worker files a retaliation complaint.
It didn’t take employers long to figure out that the electronic reporting rule’s anti-retaliation provisions could prohibit mandatory post-incident drug-testing policies. OSHA has taken the position that employers cannot use drug testing to retaliate against employees, Abastillas says, because testing could be perceived by workers as invasive, embarrassing, or an invasion of privacy.
“OSHA’s position on post-accident drug testing policies caused a lot of concern because many employers have mandatory post-incident drug testing policies that require employees to complete a drug test if they are involved in a workplace incident or accident,” she explains.
The electronic rule carves out several exceptions for permissible post-incident drug testing, however. This may be good news for employers as Abastillas expects that the majority of employer drug testing policies will qualify under at least one of the exceptions. For example, the new rule permits employers to maintain a mandatory post-accident drug testing policy if the policy is required under state workers’ compensation laws, DOT regulations, or any other state or federal law.
In addition, as long as there is a reasonable basis for concluding that alcohol or drug use could have caused or contributed to an accident, it’s generally permissible to test in those cases.
The new rule doesn’t affect random and pre-employment drug testing. Visit OSHA.gov for more information.
