DOT, NRC and CG Mandatory Drug Testing Rules Exempt;
Effective Date of OSHA Rules: August 10, 2016
By Theodore F. Shults JD, MS
First, a good question is: How does a new rule requiring employer electronic reporting of accidents to OSHA end up prohibiting most private employer post-accident drug testing procedures and policies?
Many employer drug-testing policies mandate drug and alcohol testing in the wake of a workplace accident regardless of fault, cause or suspicion that the employee was impaired or was using drugs. These polices vary greatly and can in some situations be viewed as designed to chill an employer’s interest in reporting an on-the-job illness or injury. Some state laws and courts have addressed these issues by defining post-accident testing as requiring reasonable suspicion.
Now OSHA has chimed in with a comprehensive restriction on post-accident testing. Effective August 10, 2016, OSHA’s Final Rule on Electronic Reporting of Workplace Injuries requires employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.
Regardless of the merit of OSHA’s new restriction on post-accident testing, how does this happen? Well it helps that the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing. It is OSHA’s subsequent May 12, 2016 commentary accompanying the final rules that specifies that OSHA views mandatory post-accident testing as deterring the reporting of workplace safety incidents and that employers who continue to apply such policies will face enforcement scrutiny and serious penalties.
It is not a complete ban, but it might as well be. OSHA instructs employers to:
“limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”
So which drug test does OSHA recommend that can accurately identify impairment by drug use (other than a breath alcohol test)? That guidance has not been provided.
Fortunately OSHA has spared mandatory federal and state testing programs.
State Workers’ Compensation Law and Federally Mandated Drug Testing
OSHA points out in its preamble to the final rule that a few commenters raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. To wit OSHA notes:
“This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4)”
I suspect that most law firms that provide employment guidance in states with voluntary drug testing rules are trying to figure out whether states with “voluntary drug-free workplace laws” are covered under the exemption of compliance with the state worker compensation law. It is worth noting that if an employer decides not to comply with the post-accident requirement of, for instance, Florida’s Drug-Free Workplace Act, they would lose the workers’ comp discount and legal protections the Act provides.
Fortunately, it is quite clear that compliance with the federal drug testing requirements of the DOT, CG and NRC preempt OSHA’s restriction on post-accident testing
NOTE: It is important to point out that the offending language in this final rule restricting post-accident testing is found in the rule’s preamble and not part of the black letter rule itself. Further, how OSHA will enforce the rule remains an open question, which will be reflected in its as yet unpublished enforcement guidance. Given the significance of this rule and the perfunctory opportunity provided to the industry to comment, as well as the fallout OSHA already is receiving, there is a reasonable chance that it may be rolled back or significantly amended.
Repost by permission from AAMRO, MRO ALERT publication