By Andrew Current and Katherine Miller
February 2018 – Recent years have brought about myriad changes in the screening industry, both big and small. 2017 brought updated Department of Health and Human Services (HHS) and Department of Transportation (DOT) regulations, including an expanded panel that better reflects the drug problems that are currently facing employers. 2016 brought about more changes, one of the largest to the Occupational Safety and Health Administration (OSHA), who began enforcement of new rules regarding post-accident testing. With new rules and regulations that have such overreaching impacts on the industry come a flurry of required updates to policies, related regulations, and updates to state laws. Lawsuits have plagued OSHA since the new regulations were initially announced causing delays and further complicating the landscape. What do the regulations mean for employers and what do industry experts expect will happen with them?
What do the Regulations Say?
OSHA’s anti-retaliation provisions of its Recording and Reporting Occupational Injuries and Illness regulations (OSHA 29 CFR 1904) have been in place as of December 2016. Although the original rules were proposed in May of 2016, enforcement of the provisions was delayed multiple times from the original implementation date of August 2016 due to lawsuits by employers.
OSHA 29 CFR 1904 (CFR 1904) states the following:
“You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” (1904.35(b)(1)(i))
“Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses” (1904.35(b)(1)(iii)(A))
“You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” (1904.35(b)(1)(iv))
“…section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the part 1904 records, or otherwise exercises any rights afforded by the OSH Act.” (1904.36)
What do the Regulations Mean?
The updates to CFR 1904 were meant to eliminate post-accident processes that could be construed as discriminatory to employees. One of the eliminated processes was specified as “blanket” post-accident drug testing, which could potentially be used by employers to ensure that employees did not report accidents in the workplace to OSHA. While CFR 1904 does not strictly mention post-accident testing, OSHA interprets the regulations to apply to post-accident testing. OSHA stated that:
“…the evidence in the rule making record shows that blanket post-injury drug testing policies deter proper reporting. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, 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.”
OSHA-regulated employers are still permitted and should continue to have a post-accident drug testing policy. OSHA employers who are subject to mandatory and/or voluntary laws, in addition to federally regulated programs are able to continue compliance with those laws and regulations without fear of retaliation and/or citations from OSHA. The updates to CFR 1904 do not apply to any drug testing other than post-accident.
However, the updated CFR 1904 does not allow employers to test employee post-accident without a “reasonable basis.” OSHA now weighs the following factors to determine if a post-accident drug test is “reasonable”:
• If there is a reasonable basis for the conclusion that drug use could have been a contributing factor to an illness and/or injury.
• If all employees involved in the incident were also tested for drugs or only the employee who reported the incident was tested.
• If the employer has a “heightened interest” in potential drug contribution to the injury/illness due to the safety-sensitive nature of the work being performed.
For example: If an employee makes a workers’ compensation claim due to a repetitive strain injury – think carpel tunnel – a drug test should not occur. It is not reasonable to believe that the injury was caused by impairment or drug use on the job. In contrast, should a forklift driver injure another worker but sustain no injuries to him/herself, BOTH the injured and uninjured worked who were involved in the incident should have a post-accident test. It is reasonable that drug use caused the fork-lift driver to hit the other employee and it is also reasonable that the injured party’s drug use contributed to the accident causing delayed reflexes, judgment, etc.
What do Employers Need to Do?
In order to stay compliant, employers who are under OSHA should have reviewed and updated their drug and alcohol testing policies in advance of the original implication date in December 2016. Employers, both under OSHA and not, should continue to regularly update their policies to make sure that they stay compliant with any new and/or updated regulations.
Rules that imply blanket testing in regard to OSHA post-accident testing should have already been removed at this point and should be immediately removed if they remain in place. Specifications as to what constitutes a “reasonable basis” to perform testing should be included in a written policy, if possible.
Employers should review state laws and update policies as needed. OSHA will not penalize or cite employers who post-accident test if it is required per a mandatory or voluntary state law. State laws are constantly changing, and regular policy reviews help ensure that you are up-to-date with what is required of your workplace.
Additionally, a “decision tree” should be included in your accident investigation file in order to assist in the decision-making process post-accident. Supervisors and managers should be familiar with the decision tree and have it readily available in case of an incident. Examples of pertinent decision trees can be found on OSHA’s website.
Schedule regular post-accident “reasonable suspicion/basis” training for managers and supervisors to ensure that not only is your policy up-to-date, but your employees know when and how to make decisions regarding OSHA post-accident testing. Trainings should be ongoing and occur on at least a yearly basis in order to ensure compliance. Additionally, employers should review reporting procedures annually in order to provide a streamlined process for employees to report incidents.
OSHA’s Post-Accident Testing Today
OSHA’s post-accident policy is still causing waves in the industry today. The main issue seems to come from the fact that technology hasn’t advanced enough to truly make testing for impairment possible. While employers can drug test post-accident, they can’t actually prove impairment, only the presence of certain substances in the body. As such it is not yet possible to say whether or not a drug has actually prevented an employee from working safely. Thus, the idea of being able to “reasonably” prove that a drug was a factor in an incident and that drug testing is needed is hard to defend.
Lawsuits are still pending against OSHA although the anti-retaliation provisions have been enforced for over a year. While employers currently need to have updated policies that are in line with these updates, industry experts are not expecting them to stay in place long term because of the challenges that they put on employers. While the regulations themselves will most likely stay in place, it is likely that the OSHA interpretation that makes them apply to drug testing will not stand the test of time. Until then, OSHA employers must stay compliant with these regulations in order to not be in violation.