Search This Blog

Friday, August 26, 2016

OSHA Colors in Post-Accident Drug Testing Expectations

By: Thomas Eden

The Occupational Safety and Health Administration (OSHA) on August 19 filed its memorandum brief in opposition to attempts by several groups of builders who wish an enjoin OSHA’s new post-accident drug testing reporting rule. They claim that the OSHA measure is an overreach of the agency's authority. OSHA's new enforcement mechanism under §1904.35(b)(1)(iv) prohibits employers from retaliating against employees who report accidents with OSHA’s stated goal that work related accidents may be more accurately reported. OSHA’s preamble to the new rule takes the position that blanket post-accident testing would be found to be retaliatory and a violation. The case is Texo ABC/AGC Inc. et al. v.Perez et al., in the U.S. District Court for the Northern District of Texas.

OSHA’s brief makes a strong case that its preamble statements about post-accident drug testing does not rise to a “rule” which may not be enjoined, that the regulation only concerns accurate reporting within its Congressional mandate and the Plaintiff’s petition is “meritless.” But more revealing to employers and drug testing professionals should be OSHA’s top 10 quotes contained in its brief where the Agency colors in the lines for employers who wish to continue post-accident drug testing and avoid a citation after November 1, 2016. Read OSHA’s quotes and you be the judge:

1. “the Rule requires employers to “establish a reasonable procedure for employees to report work- related injuries and illnesses promptly and accurately,” and provides that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurate reporting” (Page 5)

2. “the preamble acknowledges that OSHA will have to proceed case by case; that certain events are to be evaluated on a case-by-case basis; enforcing the Rule to apply those principles in the case-by-case manner envisioned by the preamble” (Pages 16 & 18)

3. “carefully evaluate the effect of particular incentive programs and drug-testing policies,

4. “employer may “defend by showing that it possessed a legitimate, non-discriminatory reason for taking the adverse actions”. (Page 16 fn)

5. “the preamble does not lay out any categorical rules to determine when drug use “is likely to have contributed” to an injury, or what kind of drug testing is “designed in a way that may be perceived as punitive or embarrassing.” (page 18)

6. “Model Plan for a Comprehensive Drug-Free Workplace Program, at 3. The Drug-Free Workplace Advisor website similarly encouraged employers “to establish objective criteria that will trigger a post-accident test.” Ex. 1, at 4 (terminated in 2010). These statements are consistent with the preamble and inconsistent with the blanket post-injury drug testing Plaintiffs appear to advocate.” (Page 22 fn 19)

7. “the Rule permits any drug tests that are authorized or mandated by state or federal law.” Page 22 fn 20)

8. “Wherever the Rule conflicts with a workers’ compensation law, the compensation law controls; Rule must comply with Section 4(b)(4), and so cannot be applied to “supersede” or “affect” worker’s compensation laws. 29 U.S.C. § 653(b)(4). That statement necessarily refers to all of Section 4(b)(4), including its language that the OSH Act does not “enlarge or diminish” the “rights, duties, or liabilities of employers and employees.” Id. Thus, if a state workers’ compensation law provides an employer the “right[]” to conduct a certain drug test, the Rule does not say otherwise.” (Page 23)

9. “This is a fact-specific inquiry that will need to be resolved on a case-by-case basis. (Page 33 fn 30)

10. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

11. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

Common Sense Counsel: To learn the 6 Common Sense Steps to Eliminate Employer Confusion over this issue and continue post-accident drug testing after November 1, 2016, attend the local SHRM Chapter breakfast briefing on this topic on September 2. To Register: 

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. He can be contacted at or 334-246-2901. Blog at