On May 12, 2016, OSHA published final rules that, in part, addressed retaliation against employees who report work-related injuries or illnesses. Employers were initially concerned because of language in the preamble to the rule, which implied that mandatory post-accident/injury drug tests could be construed to violate the new anti-retaliation provisions. A lawsuit was filed by several businesses in Texas seeking to block implementation of the rule. The judge issued orders twice delaying the rule, pushing the original August effective date back to November, and then December 1, 2016. On November 28, 2016, the Court issued an order denying a motion to further delay implementation of the rule, letting the December 1st effective date stand.
What does this mean for employers?
Although the judge ruled that OSHA has not prohibited “per se” all post-accident/injury drug testing, guidance memos and FAQ’s issued by OSHA in October indicate that blanket policies will likely violate the new Rule. OSHA’s guidance states, “employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury.” For example, it would not be reasonable to drug test an employee who claims a repetitive stress injury (carpel tunnel), but it would be reasonable to test an employee who crashed a forklift. OSHA’s guidance states, “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.” Mandatory drug tests conducted pursuant to BWC or other state/federal programs are specifically excluded from the anti-retaliation provisions of the Rule.
The Rule also requires that employers must provide “reasonable” reporting procedures for workplace injuries/illnesses, and that these procedures must not deter or discourage employees from reporting. The guidance memo notes that a “reasonable” reporting procedure must allow for injuries and illnesses “that build up over time, have latency periods, or do not initially appear serious enough to the employee to require reporting”, and as such “immediate” reporting policies that don’t account for these circumstances may not be reasonable.
The third major part of the Rule applies to incentive programs. The Rule does not prohibit safety incentive programs, but prohibits withholding benefits to employees that do report injuries. Examples of prohibited policies include conditioning a monthly prize drawing on no reported injuries, or excluding employees who report injuries from this type of drawing, as these policies would discourage injury reporting.
The court’s November 28th ruling is not a final decision on the merits of the lawsuit, it only addressed a motion to stop the effective date while the lawsuit was in progress. This Rule may change subject to a final court decision, and may also be rescinded or modified by the new administration in 2017.
Recommended Action Steps:
Employers with automatic post-accident/injury drug testing policies will likely have to modify these polices to comply with the new Rule. Human Resources, managers and supervisors should be trained on what constitutes a reasonable basis to require drug tests. Policies that require “immediate” reporting (which I have previously advocated) will also need revision. Employers should also review any safety incentive programs to determine if they are in compliance with the new Rule.
If you have any questions regarding drug tests or safety policies and programs, please contact Jennifer Corso. jcorso@77.104.138.33, 216-381-3400.