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  • Jim Rogers

Does OSHA Now Prohibit Post Incident Drug Testing?

Federal OSHA (the Occupational Safety and Health Administration of the United States Department of Labor), recently published a revision to its Standards (29 CFR 1904 and 29 CFR 1902) that regulate the recording and reporting of occupational injuries and illnesses. The revisions to the standing regulations were touted as "minor" and needed in order to have a better understanding of the types and frequencies of injuries occurring in the workplace. OSHA's web page answers the question "Why is OSHA issuing this rule?" as follows:

This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. One important reason stems from our understanding of human behavior and motivation. Behavioral economics tells us that making injury information publicly available will “nudge” employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

During the rulemaking process, it was stated by many, including myself, that this rule did not create any new substantial burdens on employers. Employers are already required to record the information being requested in their OSHA 300 logs; the new rule would simply establish a means (and requirement) for them to submit the records they were already required to keep, directly to OSHA. In addition, retaliating against an employee for reporting injuries and illnesses is already prohibited and illegal under existing Federal Law [Section 11(c) of the Occupational Safety & Health Act - 29 U.S.C. §660(c)]. In my opinion the revisions to the regulations were a simple update that would bring OSHA record keeping into the 21st century by requiring the electronic submission of data that employers already have, and making that aggregated data available to the public would mean that, for the first time, we would have real data furnished in a more timely fashion (as opposed to the current data which is extrapolated and published well after the fact by the Bureau of Labor Statistics) to help focus the efforts of the people who try to prevent these types of occurrences.

Published in the Federal Register on May 12, 2016, the new regulations have several phase-in dates as follows:

  • Establishments with 250 or more employees must begin the electronic submission of their 2016 OSHA 300A by July 1, 2017, and then must begin submitting their OSHA 300, 300A and 301 forms every year thereafter

  • Establishments with 20-249 employees in certain high-risk industries must also submit their 2016 OSHA 300A by July 1, 2017, and then every year thereafter (they are not required to submit the 300 and 301 forms)

  • The provisions requiring employers to inform their employees of their right to report work-related injuries and illnesses and be free from retaliation (Section 1904.35(b)(1)(iv)) take effect on August 10, 2016 - however this is already a Federal law

Again, the once-a-year electronic filing of a form that employers are already required to maintain seems like a small burden, and better access to that information can help us focus efforts in training and awareness (and yes, in enforcement too). In fact, I would liked to have seen the requirements for the smaller employers expanded to include submission of their 300 logs because I think the data is very valuable in industries like construction. As for the provisions relating to informing employees of their rights and not retaliating against them, that is already contained in Federal Law (29 USC 660(c)) and whistleblower protections are well known and actively enforced.

Since the new regulations have been published, additional information has surfaced regarding the implications of these seemingly restated employee protections.

For one thing, OSHA has noted that they now have additional enforcement powers when it comes to protecting workers rights related to the reporting of injuries and illness. Federal law already established these rights, but enforcement action could only be taken pursuant to a properly and timely filed complaint by an employee. This type of enforcement action would typically be investigated as a potential violation of various whistleblower laws (see the full list here) and would be handled independent of any other OSHA compliance activity. By restating existing Federal Law in the OSHA regulations, OSHA has, in effect, now given their safety and health compliance officers the ability to directly investigate and propose penalties under the existing OSHA penalty structure if they believe that an employer has discouraged its employees from reporting injuries or illnesses. These compliance officers can now take this action during the course of their ongoing compliance activities and OSHA now has the ability to issue citations and penalties for violation of this new regulatory standard. These citations can be issued along with any other citations that might arise as a result of their investigation, and they can do so without the need for any employee complaint.

This is a huge change in policy and potential enforcement activity as it now gives OSHA compliance officers the ability to initiate and actively pursue an investigation related to discouraging an employee from reporting an injury or illness if evidence arises during the course of any inspection. It also could seemingly result in a scenario where an employer sees multiple enforcement actions when a compliance officer finds evidence of this regulation being violated and an employee subsequently or simultaneously files a whistleblower complaint. While I do view this as a huge change in the way enforcement is handled, I also view it as simply giving new tools to an agency tasked with protecting the health and safety of the nation's workforce, and the law already existed. None the less, employers should be aware that they need to be careful about taking any action that could be viewed as discouraging their employees from reporting work related injuries and illness.

Employers also need to be aware that the determination of discouragement related to these rules need no longer be based on an employee complaint of discouragement or retaliation. This is where the enforcement landscape begins to change dramatically, with the simple question of does post-accident drug testing discourage employees from reporting injuries? Although there is absolutely no mention of drug testing in the regulatory text, there is substantial discussion on the subject in the Federal Register posting that was included as response to public comments submitted during the rulemaking process. This discussion and its conclusions will have a profound effect on drug testing policies across all industries, and in the construction industry in particular where we have been actively encouraged for the last two decades to root out and eliminate substance abuse in the workplace. In fact the discussion in the Federal Register summarily dismisses the topic as a non-issue while seemingly creating entirely new policy by simply concluding the following:

"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"

I have been an active supporter of Dr. Michaels and his leadership of OSHA during his tenure, which is the longest tenure of any Assistance Secretary of Labor in charge of OSHA. I believe that the departmental changes and the new regulations issued under his tenure have improved and will continue to improve worker safety in the United States. However, I believe that OSHA has vastly understated the effect of this very short and simple statement regarding drug testing. In the construction industry it has become almost ubiquitous to initiate post-incident drug testing as a part of a company's overall drug testing program along with things like pre-employment and random testing. The language above which is included in the Federal Register effectively introduces an entirely new mandate to the industry by asking companies to make an immediate determination (often prior to being able to conduct any substantial investigation) related to cause and contributing factors before sending employees for drug testing. Not only that, but they also introduce sweeping new language that states that drug tests must be conducted in a manner that proves impairment.

In the Federal Register posting, OSHA states that they believe only a very small minority of companies in the U.S. take actions to discourage employees from reporting workplace injuries and therefore this rule is expected to have a minor impact on industry. However, in my opinion, there are relatively few employers in the construction industry that do not have some form of policy related to post-incident drug testing; very few of these relate to incident cause and effect and virtually none have protocols in place to prove impairment. I also believe that the majority of these companies use post-incident drug and alcohol testing as an effective part of their overall program to keep substance abuse out of the workplace and not as a tool for discouraging reporting. As such, OSHA's opening statement in the portion of the Federal Register posting discussing this issue that states that their intention is only to prohibit employers from using drug testing as a form of adverse action against employees who report injuries, would have sufficed and been appropriate. Using that statement alone, I believe I could defend a policy that requires post-incident drug testing of all employees (injured or not) who had involvement in an incident that resulted in injury or property damage and is uniformly enforced company wide. I cannot, however, defend that same policy against the above quote from OSHA that effectively requires programs to prove impairment and contribution to the event.

In seemingly stark contrast to OSHA's comments in the Federal Register, the Substance Abuse and Mental Health Services Administration (SAMHSA), a division of the U.S. Department of Health and Human Services, in a report published April 16, 2015, states...

"Substance use negatively affects U.S. industry through lost productivity, workplace accidents and injuries, employee absenteeism, low morale, and increased illness. U.S. companies lose billions of dollars a year because of employees' alcohol and drug use and related problems."

The report goes on to further identify the construction industry as being at or near the top of the list when it comes to employee illicit drug use and employee heavy alcohol use. On a positive note, it identifies decreases in these statistics within the construction industry in the five year period from 2008-2012, as compared to the previously reported five year period from 2003-2007. However, the problem remains prevalent within construction and is topped only by the accommodation and food service industry. And of course, none of this even begins to address the overall societal impacts of illicit drug use and heavy alcohol abuse within the United States.

Given this, it is unconscionable that OSHA would seek to remove a tool that we have been using effectively within the industry to root out and reduce the impact that this abuse has in the workplace. To be fair, in its Federal Register posting, OSHA states that this is not at all what they are trying to do, rather they are seeking simply to remove barriers to reporting injuries and illness.

I believe that if they would have stopped their monolog and concluded with their statement that their intention is simply to prohibit employers from using drug testing as a form of adverse action against employees who report injuries, the actual regulatory text is fine; however with the additional monolog contained in the posting, and in particular the very final and absolute statement that post-incident drug testing needs to accurately identify impairment and should be be limited to situations in which we can state that drug use is a likely contributing factor, industry is left with little choice but to address their current policies, whether or not they believe the policies discourage reporting. In my opinion the result will ultimately be the elimination of a legitimate and effective tool for reducing what the U.S. government itself recognizes as a having a negative effect on U.S. industry. Quite simply, most companies do not have the ability or the tools to prove impairment, and proving cause and effect prior to sending an employee for drug testing is often not feasible. In my opinion, many companies will simply drop this portion of their substance abuse programs, eliminating a tool we need to help in the maintenance of a drug-free workplace. Companies simply will not want the liability or exposure that comes with choosing who gets drug tested and who does not. That's largely the reason the industry has gone to across -the-board mandatory post-incident testing in the first place.

Again, I believe the regulatory text that has been published is workable, and employers should not be implementing any tool or policy for the purpose of discouraging reporting. I also believe that a policy of mandatory post-incident testing for all workers (injured or not) involved in an incident where an injury, hazardous exposure or property damage has occurred can be a legitimate and defensible policy when measured against the regulatory text. I do not, however, believe that there are many existing policies that will stand up to the newly introduced enforcement interpretation and mandate outlined in the Federal Register regarding proving cause, effect and impairment. Given the well documented negative impacts of drug abuse on both industry and society, I believe that Dr. Michaels should quickly address this issue by rescinding commentary made in the Federal Register before it becomes enforcement policy.

Again, I applaud the new rules based on the regulatory text and believe that the more timely and direct reporting of information can be used to help direct efforts to protect the health and safety of America's workers. I also agree that this information is only good if workers actually report all injuries and illnesses, and I have no issue with giving compliance officers new enforcement tools to ensure compliance. I do not believe that the publication of these new rules should result in a wholesale change to an effective tool being used to curb illicit drug use in the workplace by suddenly (and without discussion) changing the standard to which drug testing programs are currently held, and I call on Dr. Michaels and OSHA to correct this situation themselves rather than waiting for the courts to rule on the interpretation.

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