Late last week, OSHA issued compliance guidance in an attempt to clarify the department’s position.
In May of 2016, OSHA finalized the new recordkeeping regulation and, with it, included a provision meant to prevent an employer from retaliating against an employee who reports a work related injury. While the original provision never mentioned blanket post accident drug and alcohol testing policies specifically, the final regulation’s preamble addressed exactly that. It was the preamble that left employers questioning whether their blanket post accident testing would open their organization up to substantial fines.
Last week, from OSHA:
“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Since the clarification, we’ve had many calls from confused employers – and rightly so. Although the above guidance may have loosened the testing reins in certain situations, it certainly does not walk back the prior guidance completely. Instead, the latest from OSHA reinforces the need for an employer to test only when there’s a legitimate business need and, above all, for the employer to be consistent when making testing decisions in similar situations. In other words, nothing has really changed.
In the last two years, many employers have come to realize that a blanket testing policy, while easier to manage, has never been a good business decision. In blanket testing, employers often had standing orders in the office of their treatment provider that gave the go ahead to test any employee who presented for treatment of a work related injury – regardless of the cause. Employees who presented for the treatment of a bee sting, for example, or those who were injured as a result of a co-workers’ negligence, very often, had to submit to testing. Employees who presented for treatment days or even weeks after the injury also had to submit to testing. Having such a decisive policy has, over the years, resulted in causing issues for a decision the employer did not directly make and consequences that their policy may not be prepared to support.
Where do we go from here?
This is not the last time we’ll be hearing about this particular regulation. At this writing, there are still two lawsuits that were put on hold by the courts while the current administration reviewed the rule. It is still quite possible that the entire rule will be walked back. But, until that time, employers should continue to only require post accident testing when there is reason to believe that drugs or alcohol are involved. To ensure consistency, use a checklist for every injury and document the information that led to the decision to test or not test. Take time to train your supervisors, as well. Their documentation, if they decide to require a test, will not only cover OSHA’s requirement but may also help your case if there’s a reason to challenge the claim. So train your supervisors to be detailed!
Drug Free Safety Program Participants
The recently released guidance also mentions, again, that there are exceptions that allow for a blanket testing policy, including participation in a workers’ compensation discount program. This is just a reminder that Ohio’s Drug Free Safety Program does not now nor has it ever required testing after every injury. While it was common for employers in the DFSP to have blanket testing policies, the Drug Free Safety Program’s Self Implementation Guide (page 17) is quite clear in stating that there are situations when testing is not required. In other words, continue to follow OSHA’s requirements until otherwise noted.
Note: The guidance also included information on safety incentive programs. For more information, visit OSHA's Website: Clarification on OSHA's Position.
For questions, please contact our offices.
At the end of June, OSHA published a notice in the Federal Registrar proposing a delay to the required reporting of illness and injury data under the Record Keeping Rule. OSHA has also signaled that other portions of the rule may be under review and/or revised.
Additionally, In two separate lawsuits challenging the anti retaliatory portion of the rule, the federal district courts have issued a stay in litigation while OSHA considers whether to review and/or revise all or part of the rule. This is the portion of the Record Keeping Rule that will affect incentive programs and post accident testing.
What employers need to know
The delay only affects the effective date of the reporting of illness and injury requirement. While OSHA is considering reviewing and/or revising other sections of the Record Keeping Rule, nothing official has come from OSHA. Employers should continue to follow the current protocol and only require a post accident drug test when there's reason to believe that drugs or alcohol may have been contributed to the cause of the injury.
We will continue to monitor the situation and send an update as soon as information is made available.
We had such an overwhelming demand on our webinar: "Don't Get Fined: Ohio's Medical Marijuana Law and OSHA"s Position on Post Accident Testing", that we scheduled a second session. To register, click the link below and we thank you for making this course so popular!
Webinar: Don't Get Fined: Ohio's Medical Marijuana Law and OSHA's Position on Post Accident Testing
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Ohio's Drug Free Safety Program doesn't exempt your company from OSHA's position on post accident testing
,A few weeks ago, we received an inquiry from one of our partners asking about OSHA's position on post accident testing and whether Ohio employers in the Drug Free Safety Program (DFSP) needed to comply. It seems one of his employers had attended an education session where the speaker addressed the new OSHA rule. In doing so, the speaker stated that employers in the DFSP were exempt from compliance with the post accident testing provision addressing automatic testing policies. The generality of the statement by the speaker leads employers in Ohio down a dangerous path.
First, OSHA's position on post accident testing addressed in the new recordkeeping rule makes having an automatic testing policy on all injuries a violation of the final rule. The rule "encourages" employers to only test when there is reason to believe that drugs and/or alcohol may be involved. While it is true that, on October 19, OSHA clarified their position on employers exempt from the rule to include those participating in state workers' compensation discount programs, Ohio's Drug Free Safety Program does not require an automatic testing policy after an injury.
From the Drug Free Self Implementation Guide (pages 16 and 17):
"BWC provides what we consider to be an “intelligent-testing design.” As such, even after conducting an accident investigation and determining who may have caused or contributed to a work-related injury, we do not require employers to order a post-accident test if all the following apply:
To better understand the DFSP requirement, let's use a simple example: A nurse hurts her back while lifting a patient. In an automatic testing policy, the nurse would be required to test. However, following the DFSP language above: if the injury is common to the nurse’s job (it is), there's no violation of work rules (there is not) and there’s no reason to believe that drugs or alcohol are involved (there is not), no test would be conducted.
Using the example provided above, it's easy to see that the DFSP only requires the same type of decision making process when an injury occurs that OSHA supports - not an automatic testing policy.
For many years, employers in Ohio have utilized an automatic testing policy after an injury requiring medical treatment. Nobody has told them that they have to, it's just become common practice. The automatic testing policy has never been a problem because the practice goes beyond what the BWC requires. But now that OSHA is on the scene and without a DFSP requirement to protect participants, those employers with an automatic testing policy are running afoul of OSHA's anti retaliatory provision and the consequences can be harsh. Unless regulated, employers should abandon the practice of automatic testing and move to a procedure and policy that allows discretion when requiring a test. More from our blog here: New Anti Retaliatory Rule Affects Post Accident Testing Policies.
Update: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.
This afternoon, a federal judge in Texas denied a request from employers and business groups for a preliminary injunction to halt the enactment of the anti retaliatory provision in the OSHA recordkeeping rule. The decision affects an employer’s injury reporting process, including post accident drug and alcohol testing policies and safety incentive programs. The decision only denies the preliminary injunction and a decision regarding a permanent injunction will come at a later date however, enforcement will begin December 1st without further delay and employers should review their policies and make the necessary procedural changes immediately.
While much of the focus on the final recordkeeping rule has been on the electronic reporting requirements, language addressing injury reporting was also clarified. The rule requires employers to have a reasonable injury reporting process. For post accident testing, OSHA said drug testing programs requiring blanket testing of all employees who experience an injury would violate the standard stating the threat of testing would discourage reporting. OSHA has instructed employers to only use post injury drug testing “when there is a reasonable possibility that drug use by the reporting employee was a contributing factor”.
In the decision, Judge Sam Lindsay said the organizations and employers seeking an injunction against enforcement of the rule failed to show that there would be irreparable harm if OSHA moved ahead with enforcing the rule.
On October 19, OSHA issued guidance on safety incentive programs, disciplinary programs and drug testing and is available on the OSHA website or by connecting to our blog: OSHA Issues Guidance on Post Accident Testing.