Employers Have Until August 10, 2016 to Comply

By: Emory D. Moore, Jr.

Under the Occupation Safety and Health Administration's (OSHA) new rule to Improve Tracking of Workplace Injuries and Illnesses, many employers risk citation by OSHA for post-injury drug testing policies that were once encouraged by courts and federal agencies, but might now be prohibited.

On May 12, 2016, OSHA published a final rule requiring employers in certain industries to electronically submit work-related injury and illness data, and notifying employers that OSHA intends to publish the data on a publicly accessible website. OSHA, however, feared that such public posting would result in employers discouraging employees from reporting work-related injuries and illnesses. In particular, OSHA feared that employers would use drug testing policies to discourage employee reporting. To assuage this fear, OSHA included provisions in the rules that (1) require employers to inform employees of their right to report work-related injuries and illnesses, free from retaliation, (2) clarify that the reporting method "must be reasonable and not deter or discourage employees from reporting," (3) explicitly prohibit employers from retaliating against employees for reporting work-related injuries or illnesses, and (4) allow OSHA to issue citations for retaliation, without an employee having to file a complaint first.

While the new rule does not expressly mention drug testing policies, OSHA has taken the position in a comment to the final rule that the rule "prohibit[s] employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses." More specifically, the comment provides that "blanket post-injury drug testing policies deter proper reporting" and "drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting."

OSHA has clearly taken aim at post-injury drug testing, with an emphasis on blanket post-injury drug testing policies. The final rule becomes effective August 10, 2016. As such, employers should review their post-injury drug testing policies as soon as possible to ensure that (1) unless otherwise required by law, drug testing is only implemented where there is a "reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness," and (2) the policy does not create a perception that drug testing is punitive or embarrassing. Additionally, employers should have counsel review the interplay between this final rule and any applicable workers compensation laws and policies.

If you have any questions about the new regulations, please contact Emory D. Moore, Jr. at (313) 965-8260 | eat0@eau0eav0eaw0, or another member of Clark Hill's Labor and Employment Practice Group.