OSHA’s Anti-Retaliation Provisions Take Effect Today: Do Mandatory Drug Testing Policies Comply?

Authored by Adam D. Hirtz

Dec 01, 2016

Despite efforts to keep the Occupational Health and Safety Administration (OSHA) from enforcing the anti-retaliation provision of its new recordkeeping rule, the rule will take effect today. Earlier this week, a federal judge decided not to stop OSHA’s enforcement of the anti-retaliation provision as it relates to post-accident drug testing and safety incentive programs. In pertinent part, the judge found the plaintiff-business groups failed to show they would be “irreparably harmed” if the rule took effect.

The new rule requires employers to inform employees about their right to report workplace injuries and illnesses without facing retaliation. It also restricts an employer’s ability to perform post-accident drug testing and to maintain safety incentive programs with certain terms. With regard to post-accident drug testing, the new rule suggests an employer cannot require drug testing after a work-related injury unless drug use is “likely to have contributed to the incident” and testing can “accurately identify impairment caused by drug use.” In OSHA’s eyes, requiring drug testing after work-related injuries discourages employees from reporting those injuries.

Similarly, the new rule suggests certain safety incentive programs, especially those that disqualify an employee for a monetary bonus if he/she has a safety-related injury, also discourage employees form reporting workplace injuries.

While the federal judge refused to enjoin OSHA’s enforcement of the rule on a preliminary basis, there is still hope for employers looking to avoid the rule’s potential effect on their injury reporting policies. Litigation regarding the validity of OSHA’s rule is ongoing, and it remains to be seen whether the court will uphold the rule. Furthermore, with the installation of the Trump administration in January, there is a distinct possibility his secretary of labor might dump the rule completely.

In the meantime, employers should keep close watch on litigation over the rule while remaining aware that the rule technically applies until it is rendered invalid by a court or withdrawn by the Trump administration. However, employers should keep in mind that anti-retaliation issues must be raised by an employee or discovered by OSHA during the course of an investigation into another safety issue. OSHA cannot simply knock on the door and demand to review an employer’s work-related injury reporting policies. Thus, while revising policies and procedures to comply with the rule is one option, until we see how OSHA actually enforces these rules and/or if the rule even ultimately survives, we recommend leaving any mandatory-post accident policies in place. If OSHA challenges your actions, you may be able to argue that the drug testing was done in connection with workers’ compensation rules (in some states and situations) or other applicable statutes (such as DOT regulations), reasonable suspicion of drug or alcohol use by the employee, and/or any number of legitimate business reasons unique to your industry.

At Lowenbaum Law, we understand employers’ needs differ. Contact our Workplace Health and Safety Team to discuss OSHA’s new rule as it applies to your specific needs.

Page 1 of 11