The Occupational Safety and Health Administration’s (OSHA) changes to its recordkeeping rule are causing employers to re-evaluate their drug-testing and safety-incentive programs in light of discussion in the Federal Register on these topics. The major concern stems from OSHA’s statement that “drug-testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use” so as not to unduly violate employees’ privacy and impermissibly discourage employees from reporting work-related injuries.
OSHA is clear that the final rule does not ban drug testing of employees, but rather, prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. OSHA illustrates that it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive-strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction, as in such cases employee drug use is not likely to have contributed to the incident. OSHA does not discuss examples of what drug test can’t accurately identify impairment caused by drug use, but, presumably, unless an employer is using a blood test, it will not be able to accurately identify marijuana impairment. OSHA also makes it clear that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.
What does this all mean for employers who drug test? OSHA has delayed enforcement of the anti-retaliation provisions until November 1 “to conduct additional outreach to the regulated community.” Between now and then, OSHA plans to release guidance on the topic to assist employers. However, a plain reading of the comments as they now stand suggests that if employers test post-accident pursuant to state law permitting a reduction in workers’ compensation benefits for employees testing positive for drug use or pursuant to DOT requirements, the motive would likely not be retaliatory and the final rule would likely not prohibit such testing. However, employers who are post-accident drug testing in all other situations should limit such testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. MSEC is revising its sample policies accordingly. Employers interested in obtaining a drug test that omits marijuana from the list of substances tested should contact MSEC’s Pre-Employment Screening department.
Regarding safety incentive programs, OSHA has previously recognized that programs that discourage employees from reporting injuries and illnesses by denying a benefit to employees who report an injury or illness may be prohibited by section 11(c). Now, OSHA is going further in stating that under the new recordkeeping rule, it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness.
What OSHA liabilities do employers have for violating these provisions? Recordkeeping violations currently can result in citations of up to $124,709 for repeat and willful violations and up to $12,471 for all other violations. Additionally, employers could face whistleblower claims under 11(c) which could allow for back pay, compensatory and punitive damages.
In light of the delayed enforcement date and forthcoming guidance, employers are urged to continue to monitor Hot Topics for the time being and prepare to amend their drug policies prior to November 1, if necessary.