by Bart N. Sisk
The Occupational Safety and Health Administration (OSHA) has issued new rules revising its requirements for recording and submitting records of workplace injuries and illnesses. The revised rules require employers in certain industries to submit injury and illness data electronically. The frequency and content of the reports depend on the size and industry of the employer. The final rules also include provisions that encourage workers to report work-related illnesses and injuries and prohibit employers from retaliating against employees who make such reports. 
Employers must inform employees by August 10, 2016, about the prohibition on retaliation for reporting injuries and illnesses. Moreover, you must establish a procedure for employees to report work-related injuries and illnesses that is “reasonable” and doesn’t deter or discourage them from making reports.
Granted this is pretty dry stuff. However, if you currently have a blanket rule requiring employees to submit to mandatory drug testing after an accident or injury, regardless of the cause of the accident, the amount of damage, or the significance of the injury, read on. OSHA considers such policies to be a form of adverse action that can deter employees from reporting of an injury or illness.
Drug use must be a likely factor
OSHA’s comments on the final rule are instructive:
Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an 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.
While OSHA claims its goal is not to ban drug testing of employees, it has affirmed its position that to survive a challenge (and a potential citation and hefty penalty), postincident drug testing must be restricted to situations in which employee drug use is likely to have contributed to the accident and the drug test can accurately identify whether the worker was impaired by drug use at the time of the incident. The agency provides the following examples to support its position on limited drug testing:
For example, it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.
Takeaway
Be advised that if you have a blanket policy that requires drug testing after any workplace accident or incident, OSHA considers it a form of adverse action that could deter employees from reporting injuries and illnesses. Even if you revise your policy to limit drug testing to situations in which the employee’s actions (or inaction) could have caused or contributed to the accident, you must establish that the drug test can accurately identify whether the employee was impaired by drug use at the time of the incident.
If you drug test employees pursuant to a state or federal law or regulation, you should be safe. OSHA acknowledges that conducting drug testing to comply with the requirements of a state or federal law or regulation—for example, workers’ compensation rules or U.S. Department of Transportation (DOT) regulations—isn’t a violation of the rule because the employer’s motive in testing isn’t retaliatory.
There’s no reason to stop postaccident drug testing. The limitations on such testing are found in the commentary to the rules, and the new rules will likely face legal challenges. However, any policy language calling for “blanket” drug testing should probably be discarded in favor of language stating that testing will be done when an employee’s action (or inaction) is suspected of causing or contributing to the accident. Given OSHA’s comments about determining whether an employee was impaired at the time of the incident, time is also a factor in evaluating a drug-testing policy. Remember, testing that complies with state or federal laws or regulations isn’t considered a violation of the rules. That said, if you haven’t reviewed your drug-testing policy recently, now would be the time to do so.
Bart Sisk is an attorney in Butler Snow LLP‘s labor and employment practice group in the firm’s Memphis office. He may be reached at bart.sisk@butlersnow.com.