June 12th, 2018 by Edwin G. Foulke, Jr. at Fisher Phillips
The Impact Of OSHA’s Recordkeeping Revisions
on Permissible Post-Accident Drug Testing
By Edwin G. Foulke, Jr.
On May 11, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final Rule that greatly enhanced injury and illness data collection for most employers while at the same time greatly enhancing the potential of discrimination and retaliation claims all employers. The new revisions to the OSHA Recordkeeping Rule (29 CFR 1904) require many employers to electronically submit information about workplace injuries and illnesses to OSHA, and OSHA intends to post this information on its public web site.
While the electronic filing requirements in the revisions to the Recordkeeping Standard garnered most of the publicity at the time the Rule was announced, it is the other provisions of the Standard impacting all employers that are probably the most onerous. As part of the changes to the Recordkeeping Rule, OSHA tied in the requirements of the whistleblower provisions found in Section 11(c) of the Act to the revised requirements for employers’ procedures for employees to report injuries and illnesses without fear of retaliation. The final Rule contained three revisions to highlight the retaliation protection under the new employee injury and illness reporting requirements. As part of these requirements, employers must have procedures for reporting work-related injuries and illnesses that are “reasonable” and must not deter or discourage employees from reporting, In addition, under the changes to the Recordkeeping Standard, employers may not retaliate against employees for reporting work-related injuries or illnesses. All employers should be concerned that under this expanded retaliation provision, OSHA now has the ability (which it did not previously have) to cite employers for retaliation and discrimination under the Recordkeeping Standard.
While not stated specifically in the new language of the revised Recordkeeping Standard, OSHA made it clear in the Preamble to the final Rule that requiring drug testing for any work-related injury may not be permissible. In the Preamble, OSHA states:
“Although drug testing of employees may be a reasonable workplace policy in some situation, it is often perceived as an invasion of privacy, so if any injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”
Specifically, with respect to post-accident drug testing, OSHA believes that drug testing should only be administered if there is reasonable cause to believe that impairment may have been a contributing factor in the reported injury or illness and only where “the drug test can accurately identify impairment caused by drug use.” OSHA does recognize that some drug-free workplace provisions in some state workers’ compensation statutes require post-accident testing. There are a number of states that have some form of state workers’ compensation statutes that require post-accident testing, and these statutes will most likely allow a safe harbor for employers to continue to perform drug testing for injuries or accidents. In the Preamble, OSHA does give one example of an injury that would be perceived as inappropriate for drug testing, specifically, bee stings resulting in an allergic reaction occurring as a work-related incident. In such types of incidents, OSHA believes employers should not require drug testing which it perceives would discourage employees from reporting work-related injuries or illnesses and thus be in violation of the new employee injury and illness reporting requirements under 1904.35. Employers should give consideration for all supervisors and managers to be trained to identify when employees may be impaired, as well as when drug and alcohol use or abuse could have contributed to the work-related injury. In the Preamble, OSHA also acknowledges that an employer which conducts drug testing to comply with requirements of a federal and/or state law or regulation will not be considered in violation of the new recordkeeping revisions because its motive in conducting testing is not retaliatory. As a result, employers who must comply with post-accident testing, such as under Department of Transportation regulations, will be allowed to continue such testing.
OSHA is currently working on a Compliance Directive for its inspectors in implementing these new recordkeeping requirements and is also preparing a detailed question and answer white paper for the general public to assist them in meeting the requirements of the revisions to the Recordkeeping Rule. It is anticipated that these recommendations will be released prior to the retaliation provisions of the new Rule going into effect on November 1, 2016. It is also anticipated that the Compliance Directive will limit where OSHA will find violations for drug testing of employees for work-related injuries. Employers should be reviewing their employee injury and illness reporting policy as well as their drug testing policies to ensure that they are in full compliance by November 1, 2016.
Edwin G. Foulke, Jr., is a partner and co-chair of the Workplace Safety and Catastrophe Management Practice Group at Fisher & Phillips LLP, a leading labor and employment law firm. Before joining Fisher & Phillips, he was Assistant Secretary of Labor for Occupational Safety and Health. Named by President George W. Bush to head OSHA, he served from 2006-2008, when rates of workplace injuries, illnesses and fatalities dropped to their lowest level in recorded history. Foulke also served as Chairman of the Occupational Safety and Health Review Commission from 1990-1994 and is the only person to have held both OSHA positions. Foulke has been named one of the “50 most influential EHS leaders” in the U.S. every year 2010 through 2013 by EHS Today magazine. He can be reached at email@example.com or 404.240.4273.
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