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Thursday, June 16, 2016

Conducting Post-Accident Drug Tests Under OSHA’s New Reasonable Reporting Procedure Regulation: Four Risk Reduction Strategies

By: Thomas Eden

      On August 10, 2016, OSHA will begin enforcing its new regulation requiring employers to have a “reasonable procedure” for employees to report work-related injuries and illnesses.  The rationale for this new requirement is that employees should not be punished in any way for exercising their right under the Occupational Safety and Health Act to report a work-related injury.  Any adverse action that is taken because an employee exercises this right to report is viewed by OSHA as a violation of §11(c) of the OSH Act, and as of August 10, 2016, of §1904.35 as well. 

      Under this new regulation, §1904.35(b)(1), a procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  Although the regulation itself does not mention drug testing, the Agency made clear in the Preamble to the new rule published in the Federal Register on May 12, 2016, that it believes “blanket post-injury drug testing policies deter proper reporting” and would thus be subject to OSHA citation. 

     OSHA’s interpretation of its new reporting regulation is generating confusion among employers who are concerned that they will be prohibited from conducting any post-accident drug tests. If an employer’s motivation for having post-accident drug testing is for some valid reason other than discouraging employees from reporting injuries and illnesses, most commentators believe the policy will not run afoul of §1904.35.  For example, many states, including Alabama, have Drug Free Workplace (DFWP) statutes that offer employers a reduction in their worker’s compensation insurance premiums if they adopt a program in compliance with the terms of the statute, that includes post-accident drug testing. Therefore, consider these 4 strategies:

1st risk reduction strategy—make sure your written policy is in compliance with the Alabama DFWP and secure a letter of acceptance from the Alabama DOL;

2nd risk reduction strategy—obtain a written document from your Work Comp carrier, or fund, that you are receiving a premium discount for a program that includes post-accident drug testing;

3rd risk reduction strategy—like the DOT post-accident testing regulations. employers should give consideration to expanding their post-accident definition as evidence that it is not a blanket test, but based on specific objective safety related triggering events; and

4th risk reduction strategyif an employer has a post-accident reasonable suspicion checklist for supervisors, such would most likely prove on its face that the post-accident test was not a blanket test. 

Common Sense Counsel: In August, OSHA will be providing some guidance in the form of Frequently Asked Questions, and based on what we’re hearing informally, those FAQs will allow post-accident drug testing under a State Drug-Free Workplace Policy. Consider these four risk reduction strategies as we await the FAQ’s so your program will not be a workplace casualty.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. The above information was taken from a more extensive Client Alert published by his law firm’s OSHA Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com