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New OSHA Rule Affects Post-Accident Drug/Alcohol Testing

By Attorney Jennifer Augustin

You may already be familiar with the rules that require some employers to track work-related injuries and illnesses in what is commonly referred to as an “OSHA log.” What you might not know is that, as of January 1, 2017, OSHA has revised these rules, and the revisions have implications for post-accident drug or alcohol testing. With the new intoxication defenses available in Wisconsin worker’s compensation cases as of 2016, it is important to know how these revised OSHA rules affect worker’s compensation claim handling.

What do the new rules say? While the main body of the rules relate to electronic reporting of workplace injuries and illnesses, the revised rules contain provisions directed at employer practices that might discourage employees from reporting injuries or illnesses and practices that constitute retaliation against an employee for reporting any such injury or illness. This includes post-accident drug or alcohol testing.

Are post-accident drug/alcohol tests a violation of OSHA rules? No. The new OSHA rules do not prohibit post-accident drug or alcohol testing. Rather, they prohibit employers from using a drug or alcohol test, or the threat of a test, to retaliate against an employee for reporting an injury or illness. OSHA indicates that any blanket post-accident drug or alcohol test policy, meaning anyone who reports a workplace injury or illness is subject to a drug or alcohol test, is in violation of their rules because the policy acts to discourage injury reporting without contributing to the employer’s understanding of why the injury occurred. Instead, employers must limit post-accident testing to those instances where there is a reasonable possibility that employee drug or alcohol use could have contributed to the injury or illness, and the test can accurately identify whether the employee was impaired at the time of the incident.

When is there a reasonable possibility that employee drug/alcohol use contributed to an injury? Consider the employee who is injured while operating a vehicle that is properly stopped at a red light when it is hit by another vehicle. Consider the employee who is injured when a machine malfunctions through no fault of the employee. Consider the employee who reports a repetitive use injury without any specific incident. These are all pretty clear instances of injuries or illnesses that are unlikely to have been caused by the employee’s drug or alcohol use. But consider the employee who is injured as a result of improperly operating a forklift or an employee who falls off a ladder after failing to set it up properly. These are instances where the employee’s own conduct contributed to the injury and that conduct could have been impaired by drug or alcohol use. The employer need not specifically suspect drug or alcohol use by the injured employee in order to perform a post-accident test. Rather, there should be a reasonable possibility that drug or alcohol use by the reporting employee could have contributed to the injury or illness.

OSHA indicates that when it evaluates the reasonableness of post-accident drug or alcohol testing, it will consider several factors, including:

  • Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness,
  • Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employee who reported the injury was the only one tested, and
  • Whether the employer had a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred.

When can a drug/alcohol test accurately identify whether an employee was impaired at the time of an accident? Employers should be aware that many tests provide limited information about whether an individual is actually impaired by drugs or alcohol. Urine tests only tell you whether the individual has a drug in his or her system, not how much. Blood testing can more accurately determine the amount of a drug in an individual’s system, but impairment levels often depend on when the drug was taken, the individual’s body mass and tolerance level, the method of delivery, etc. When evaluating the reasonableness of testing a particular employee, OSHA will only consider whether the test is capable of measuring impairment at the time of the injury or illness if such a test is available. Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. OSHA specifically refers people to the National Highway Traffic Safety Administration’s Drug Human Performance Factsheet for more information on this issue.

What about state or federal laws that require post-accident drug/alcohol tests? Some industries are regulated by the Department of Transportation which has its own rules about drug testing. Others are regulated by federal law regarding drug-free workplaces if they have a contract with the federal government. If a post-accident drug/alcohol test is performed pursuant to state or federal laws, including worker’s compensation laws, then OSHA will not issue a citation for violation of its rules. In order for OSHA to issue a citation for violation of the rules against retaliation, it must demonstrate that (1) the employee reported a work-related injury or illness, (2) the employer took adverse action against the employee, such as a post-accident drug or alcohol test, and (3) the employer took the adverse action because the employee reported a work-related injury or illness. If an employer conducts a post-accident drug or alcohol test in compliance with state or federal law, then the motivation for the test is not retaliatory, the employer has an objectively reasonable basis for performing the test, and no violation of the OSHA rules has occurred.

For more information, and for examples of drug testing programs and how the OSHA rule may be interpreted to apply to them, please visit the following websites:

https://www.osha.gov/recordkeeping/finalrule/index.html

https://www.osha.gov/recordkeeping/modernization_guidance.html