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.