NOSHA News August 2016

Clarification on OSHA’s Anti-Retaliatory Drug Testing Provision

Due to complaints from industry groups about provisions forbidding “retaliatory” post-accident drug testing, OSHA has pushed back the compliance deadline from August 10th of this year to November 1st. The following excerpt from a July 14th article in Safety + Health magazine should help to clarify some of the confusion.

The recordkeeping rule will require the following anti-retaliation actions:

· Employers must inform workers about their right to report work-related injuries and illnesses without the threat of retaliation.

· Employers must implement reasonable procedures for reporting injuries and illnesses that do not discourage workers from speaking up.

· Employers must incorporate existing anti-retaliation rules into their practices.

Drug testing

According to OSHA, the provisions do not forbid drug testing workers. Rather, they prohibit employers from using post-incident testing – or the threat of testing – as a retaliatory measure.

“The evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting,” the agency notes, adding that policies should limit post-incident testing to when worker drug use likely contributed to the incident, and when the test can correctly identify worker impairment. For example, testing a worker who reports a repetitive strain injury or an injury from lack of machine guarding would likely be considered unreasonable.

However, the legal challenge filed July 8 claims that “By thus asserting that post-accident drug testing must be limited to those tests which can accurately identify impairment caused by drug use, OSHA has effectively prohibited all post-accident drug testing. … Aside from alcohol tests, there are no generally recognized and accepted drug tests showing actual impairment that are available at this time.”

It also points out that many states have workers’ compensation statutes that encourage post-incident and post-injury drug testing.

“By prohibiting mandatory post-incident drug testing programs, OSHA is taking away a valuable tool used in performing root cause analysis for accidents, which can help prevent future incidents,” Greg Sizemore, vice president of safety, health, environment and workforce development for the Washington-based Associated Builders and Contractors, said in a statement to Safety+Health.

Attorney Gregory Dale, partner at Faegre Baker Daniels in Indianapolis, emphasizes two elements OSHA is looking for from employer drug-testing policies.

“One, the drug testing needs to be limited to situations where the alleged drug use likely contributed to the incident,” Dale said. “The second thing is for which the drug test can accurately identify impairment caused by the substance abuse. The comment that OSHA gave is employers don’t need to specifically suspect drug use before testing, but there should be a reasonable possibility drug use was a contributing factor, so it does introduce a reasonable suspicion element.”

Dale advises employers to review their post-injury drug testing policies to see how they relate to OSHA’s expectations, 
as well as whether they include blanket testing that OSHA would disagree with or introduce reasonable suspicion language, and to ensure testing is designed to accurately identify impairment from substance abuse.

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