The workplace environment is governed by the Occupational Safety and Health Act (OSHA). The United States Department of Labor’s Occupational Safety and Health Administration recently issued a final order that will require employers and many high-hazard industries to electronically submit injury and illness data to OSHA. Such reporting is already required to be tracked, but the reporting aspect of such injury or illness is what is new.
The new rule prohibits, “employers from using drug testing or the threat of drug testing as a form of retaliation against employees who report injuries or illnesses.” The new rule also “clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting,” additional to incorporating the existing prohibition on retaliation for reporting. OSHA will then share the injury and illness data on its website as the organization believes such posting of injury and illness data will provide valuable information to employers, employees, employee representatives (unions) and researchers.
Accordingly, employers must be aware of the new rule and comply with the reporting requirements. Employers must review “post-accident drug and alcohol testing policies,” since they will be more strictly scrutinized by OSHA going forward. Some employers administer a drug and alcohol test to anyone that may have been involved in an incident or event resulting in injury or illness to an employee.
Accordingly, any policy that automatically tests employees who suffered work-related injuries will be targeted by OSHA because such policies may be viewed as deterring employees from workplace injury reporting. The testing must be limited to circumstances where the employee likely contributed to the reported injury or illness. If, for example, a hi-lo driver in a plant injured a co-worker, it is appropriate that the driver of the hi-lo be examined for drug and alcohol while the co-worker that was injured by the hi-lo driver probably should not be similarly examined. The policy for alcohol and drug testing must be designed to accurately identify the impairment caused by the drug or alcohol use.
The employers must also consider tests that only measure very recent drug use to determine if an employee was impaired by alcohol or drugs at the time of the accident by use of tests which visually show how much drugs or alcohol caused impairment at the time of the accident, rather than merely be designed to show how much drugs or alcohol are in the employee’s system.
Employers should consider avoidance of post-accident drug and alcohol testing in favor of implementing reasonable suspicion testing instead, or using random drug and alcohol testing programs to deter drug use before an accident actually occurs. Employers will be required to file state and federal reports for drug testing, but may continue to test for drugs and alcohol. However, the employer is reminded not to retaliate in any way against an employee who reports workplace injury or illness. Retaliation can include change in workplace duties, status, compensation, hours of work and other conditions of employment. Consequently, an employer should avoid a mandatory drug testing policy after report of injury, unless justified by the circumstances, behavior of the workers, and other facts.
The motivating reason for this change of policy is to provide employees with the ability to truthfully and completely report workplace injuries and illnesses without fear of retaliation.
Attorneys from CMDA are available to evaluate workplace policies to help assure compliance with this and other laws. OSHA provides fines of up to $12,471 for serious violations of these rules.
Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or firstname.lastname@example.org.