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Tuesday, November 29, 2016

Texas Judge Refuses to Enjoin OSHA’s Post-Accident Drug Testing Final Rule Effective December 1, 2016

 By Thomas Eden

IIn high stakes litigation playing out before United States District Judge Sam Lindsey in Dallas, Texas, the government attorneys defeated several employer groups seeking to enjoin OSHA’s record keeping rule-anti-retaliation provision under 29 CFR 1904.35. Judge Lindsey ruled in his opinion that, “Plaintiffs have not demonstrated a likelihood of irreparable harm necessary for issuance of a preliminary injunction. Plaintiffs’ evidence is based almost entirely on unsupported beliefs, unfounded fear, and speculation regarding the general efficacy of mandatory post-accident drug testing and incident-based safety incentive programs, which are insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.”

Below is the delay of enforcement memorandum sent on October 18, 2016, to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses (1904.35(b)(l)(i)); requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation ((b)(l)(ii)-(iii)); and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses ((b)(l)(iv)). These provisions became effective on August 10, 2016.
OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.). OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.
This final regulation, if not enjoined, will on December 1, 2016, impact employer post-accident drug testing nationwide. For guidance, see Constangy’s Don’t Panic! Employers Should be Able to Continue Most Post-accident Drug Tests under OSHA’s New “Reasonable Reporting Procedure” Rule.

 On October 19 OSHA Released Updated Guidance:

Improve Tracking of Workplace Injuries and Illnesses – Employee's right to report injuries and illnesses free from retaliation

One of the goals of this recordkeeping rule is to improve the completeness and accuracy of injury and illness data collected by employers and reported to OSHA. When workers are discouraged from reporting occupational injuries and illnesses, the information gathered and reported is incomplete and inaccurate.

The rule includes three provisions that are intended to address this issue:

(1) An employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting

(2) Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation

(3) An employer may not retaliate against employees for reporting work-related injuries or illnesses

Injury Tracking and Use of Disciplinary, Incentive or Drug Testing Programs

The rule does not ban appropriate disciplinary, incentive, or drug-testing programs as described below.

However, it allows OSHA to issue citations for retaliatory actions against workers when these programs are used to discourage workers from exercising their right to report workplace injuries and illnesses. Employers should review their reporting procedures, programs, and policies for elements that may result in retaliatory actions against an employee for reporting an injury or illness.

Disciplinary Programs

Incentive Programs

Drug Testing Programs

A 10/19/2016 memorandum provides further guidance on the basic principles of these requirements.

Common Sense Counsel: Eliminating Employer Confusion over Post-Accident Drug Testing Decisions

OSHA’s interpretation of its new reporting regulation is generating confusion among employers and supervisors who are concerned that they will be prohibited from conducting any post-accident drug tests.

5  Common Sense Steps to Eliminate Employer Confusion in light of latest OSHA Post-Accident Drug Testing Guidance:
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 sign-off forms, checklists, notices and specimen documents (last chance agreement)

2. 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

3. 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.

4. 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

5. 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 to ask if the Report has been completed as part of their authorization to conduct post-accident testing
  • Train supervisors on reasonable suspicion testing & 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

Constangy is here to Help Employers - Don’t Panic!
  • Employers Should Be Able to Continue Most Post-Accident Drug Tests Under OSHA’s New “Reasonable Reporting Procedure” Rule
  • Constangy Workplace Drug & Alcohol Testing Group can help you with DFWP Compliant Policies in all 50 states
  • Can help update your current post incident/accident testing language to include the “triggers” to reduce the risk of OSHA citations
  • Can prepare a customized confidential post incident/accident report form
  • Can train your supervisors on reasonable possibility with customized checklist
  • Constangy can advise you on OSHA inspections, risk reduction steps to avoid OSHA retaliation claims, OSHA citation responses, etc.
 For a free recorded EBI webinar on this topic, click here.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901. Constangy, Brooks, Smith & Prophete, LLP has been representing the interests of employers for 70 years.  If you have questions about how your relationships are implicated in the employment law arena, please contact me or any of our attorneys.