So...Can We Drug Test or Not?

Post accident drug testing has been a valuable tool in the toolbox for employers wishing to promote a safe work environment. Such testing has also provided a solid defense to otherwise compensable claims if the employer could establish the presence of drugs in bodily fluid samples obtained within a certain period of time after the injury occurs. Some states such as Georgia even provide for premium discounts if the Employer qualifies as a Drug Free Workplace. So, when The US Department of Labor published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses – Employee's right to report injuries and illnesses free from retaliation” many employers began to question whether an employer could safely continue their Drug Free Workplace Program. or use post-accident Drug Testing. The chilling effect of the proposed rule was real even if the response was an overreaction. Indeed, even under the tighter rule issued in October 2016 before the end of the previous administration, the guidance offered by OSHA provided: The rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing pursuant to a state or federal law, including Workers' Compensation Drug Free Workplace policies, because section 1904.35(b)(1)(iv) does not apply to drug testing under state workers' compensation law or other state or federal law. Random drug testing and pre-employment drug testing are also not subject to section 1904.35(b)(1)(iv). Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. Still many abandoned post accident drug testing completely, lest in practice they venture too close to the line and be accused of retaliation. Last week, on October 11, 2018, the previous rule was rescinded and a new rule published in its place. That new rule can be found here: https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11 . This clarification emphatically states: “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” As if to emphasize the point, the “clarification” reads: The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(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. You can see from the language used that while drug testing is explicitly permitted, that employers would still be well advised to use such testing not solely for the purpose of reducing rates but also to promote a safe work environment without dissuading employees from reporting injuries. In this respect, the language of the clarification is quite similar to the language of the rule published at the end of the prior Administration. What is really new in the “clarification” is additional suggestions or guidance which encourages employers to take positive steps to great a workplace culture that emphasizes safety and not just rates. Some options: • an incentive program that rewards employees for identifying unsafe conditions in the workplace; • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses. One of the more practical suggestions for a permissible drug testing regime is that Drug testing used “to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Much of the current guidance seems to be common sense. Don’t use Drug Testing as retaliation for reporting an injury. Don’t drug test if the injury is not plausibly related to intoxication or impairment. For example, could Carpal Tunnel Syndrome have any conceivable connection to alcohol or illicit drug usage? The bottom line is, get the specimen cups ready. Testing is back on the table. If we can help you with your drug-testing or Worker’s Compensation questions, please do not hesitate to contact us.


"Skedsvold and White
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