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Thursday, September 8, 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)

Constangy’s 6 Common Sense Steps to Eliminate Employer Confusion

In light of the above positions taken by OSHA Final Regulations, we recommend the following: 

1. Adopt a DFWP policy, in accordance with the State Laws, in order to reduce insurance premiums is not retaliatory and therefore seems permissible under §1904.35(b)(1)(iv), even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces. Because the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or disqualification of workers’ compensation claims for statutory violations, such policies are likely to be viewed by OSHA as compliant. Having the State Agency, or attorney, written certification is highly recommended. Well Drafted BEST Practices DFWP Guidance:

Should meet State DFWP Laws and be customized for your business
Should cover WC and UC Disqualifications  
Should deal with Medical and Recreational Marijuana Issues 
Should handle pre-duty prescription medication disclosure under the ADA 
Should cover this new OSHA guidance 
Should be easy to read and understand by employees and supervisors
Should include all required pre-employment and active employee signoff forms, checklists, notices and specimen documents (last chance agreement).

2. Making sure you are following the DFWP Act language in drafting your policy is more critical than ever (also highly recommended for winning UC and WC disqualification cases), and make sure to include drug testing as part of your “safety policy.” 

3. Including Disqualification for a Post-Accident Positive or Refusal language under the States’ Workers Compensation in your DFWP is a wise step to be able to show testing for a lawful and permissible purpose – reduction of workers’ compensation cost and encourage an unimpaired drug free workforce. Under Section 4 of the OSH Act employer rights concerning Workers Compensation are outside of OSHA’s jurisdiction as OSHA acknowledged.

4. For those employers who are simply accepting an insurance carrier’s premium discount offer that includes mandated post-accident drug testing for reportable injuries, or required to be part of a self-insured workers’ compensation fund, in the absence of a State certified DFWP statute, the arrangement requiring post-accident testing should be captured in writing.

5. Adopt a customized confidential post incident/accident report form that captures:

The how, when, who and why of the incident/accident 
Did the employee’s action, or in-action, contribute to the incident/accident, or cannot be                       completely discounted as a contributing factor? 
Include in checklist” Triggers” matching your new post incident/accident testing circumstances           or events
Include in your checklist dual supervisor sign-offs
Completed form is evidence of legitimate, non-discriminatory reason for the adverse action; i.e.          post-accident drug test. 

6. Train supervisors, safety, HR and line managers on:

Your new Post incident/accident drug testing criteria
How to utilize your new Post incident/accident drug testing report
Train your Drug Testing TPA, Occupational Physicians’ offices, post-accident clinics not to                 conduct blanket post-accident test, but to ask if the report has been completed as part of their               authorization to conduct post-accident testing
Train supervisors on reasonable suspicion testing and reasonable possibility testing and provide           them checklist for both
Train HR and supervisors on the use of last chance agreements as a risk reduction                                 strategy.

Employers who follow this common sense counsel should be able to continue most post-accident drug tests under OSHA’s new “Reasonable Reporting Procedure” Rule. 

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 SAPAA. He can be contacted at or 334-246-2901. Blog at with link to Brief