Implications of OSHA’s Electronic Reporting Requirements on Post-Accident Drug Testing

OSHA’s recently published electronic recordkeeping requirements could have a dramatic impact on your post-accident drug and alcohol testing.  The new rule, which will take effect on January 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms.

Anti-Retaliation Protections

The rule also prohibits employers from discouraging workers to report an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; 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; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016.

Examine Your Post-Accident Drug Testing Procedures and Practices

To be clear, the rule does not prohibit drug testing of employees, but it does prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. According to commentary that accompanied the final rule, to ensure that post-accident drug testing is not retaliatory, employers who conduct such testing could face penalties unless substance abuse likely contributed to the accident and the test identifies impairment.

This requirement presents a bit of a conundrum, as employment drug testing identifies recent use only and does not measure the level of impairment, and the determination of whether or not drug or alcohol use could have contributed to an accident is totally subjective.  Therefore, it is prudent that employers develop a simple, effective incident reporting process and, if elected, consistently administer post-accident drug testing practices.

No Impact On Federal/State Drug Testing Requirements

If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation (such as Department of Transportation requirements), the employer's motive would not be considered retaliatory and thus this rule would not prohibit such testing.

Consistency Is Key to Defense

Employers should be prepared to defend post-accident testing by referencing safety considerations, for example, working with or around moving equipment, sharp blades, implications on workers’ compensation, etc.  The key here is to ensure that your drug testing program does not deter reporting of injuries and does not constitute retaliation for reporting an injury.

So, What’s An Employer To Do?

To summarize, following are practical steps for employers to take:

  • Review and revise your work-related incident/injury reporting procedures.   Make this process as simple as possible so as not to deter employees from reporting.
  • Ensure that your reporting procedures reference OSHA’s notice of the “right to report” and the assurance against employer retaliation.
  • Establish and communicate post-accident drug testing protocols and practices, if applicable to your workplace.
  • Ensure that drug testing is never utilized in a retaliatory fashion.  Post-accident drug testing must be consistently administered.  If there are to be exceptions to mandatory post-accident testing, these exceptions must be clearly defined.  Some exemptions may include bee stings, animal bites, repetitive motion incidents, etc.
  • Carefully examine your safety incentive programs to ensure that they cannot be alleged to deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

Resources

https://www.osha.gov/recordkeeping/finalrule/index.html

https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html

https://www.littler.com/publication-press/publication/osha%E2%80%99s-new-electronic-accident-reporting-rule-seeks-dramatically

http://www.lexology.com/library/detail.aspx?g=f9f5d2df-c217-4b0b-a725-1de4a5a16966