OSHA Issues Memo Clarifying Stance on Retaliation and Drug Testing

OSHA issued a new memorandum that is intended to clarify its stance on drug testing in relation to workplace accidents.

Back in 2016, the agency issued guidance that warned employers that using drug testing for retaliatory purposes would not be tolerated. At the time, Louisiana Comp Blog reported that:

“OSHA’s Improve Tracking of Workplace Injuries and Illnesses rule does not ban drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in May and taking full effect January 1st, 2017. The rule is the latest and firmest sign that the agency will frown upon mandatory post-accident drug testing without a compelling reason.”

The new memo, which OSHA says will supercede any other memos or guidance on this subject, says that OSHA recognizes that post-accident drug testing can be part of promoting workplace safety and health. It lists the following as acceptable forms of drug testing under its latest stance, saying that most instances of workplace drug testing are permissible under its regulations:”

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing 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.

In Louisiana, there is a longstanding provision that states that if an employee tests positive for drugs and alcohol after an accident, it is presumed to be the cause of the accident, unless an employee can prove otherwise. Some cases involve determining whether or not intoxication was a principle cause of the accident. Aside from that standard, among local workers’ comp stakeholders, reaction was mixed.

For Greg Hubachek, an attorney representing injured workers with Workers’ Compensation LLC, the OSHA guidance was needed. “Of course, statutory drug testing, in compliance with applicable regulations, is a tool which employers may utilize when investigating work accidents,” Hubachek explained. However, he cautioned against violations of privacy, adding that, “It is important for all stakeholders to recognize that equitable application of drug testing policies is in the best interest of public safety. OSHA has provided us with narrowly drawn guidelines for the use of drug testing. It appears to be a well-balanced approach.”

For his part, Bobby Truitt, of the Truitt Law Firm, said that given Louisiana’s law, he doesn’t perceive the guidance to provoke significant changes. “Drug testing, especially as it relates to job-related accidents, is a critical aspect of the defense of worker’s compensation claims,” Truitt said. “Any attempts to water down that defense, which the OSHA clarification does not seem to do, would be counterproductive to employers encouraging safe work practices.”

OSHA addressed the safe work practices issue in the memo, stating that it does not prohibit workplace safety incentive programs or post-incident drug testing. It goes on to explain:

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.

Reducing rates, whether in terms of OSHA reportable incidents, or workers’ comp rates or e-mod, are part of safety culture where drug testing can overlap. In Louisiana and across the country, OSHA’s guidance is intended to straddle the line between employers and employees. The success of this new stance will remain to be seen.

 

 

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