OSHA Clarifies Its Stance on Anti-Retaliation Regulations, Post-Work Accident Drug Testing

Earlier this year as part of a new final rule on electronic record-keeping, the U.S. Occupational Safety & Health Administration warned employers against using automatic drug and alcohol testing – or the threat of it – to discourage workers from reporting an injury or filing a claim for workers’ compensation. That new rule set off a fierce debate about whether it was ever appropriate for employers to drug test employees following a workplace accident. Or is it across-the-board retaliatory? drugs

This prompted the agency to issue a memorandum recently that clarified its position. That memo indicated the agency won’t issue citations under the Electronic Recordkeeping Rule for drug tests that are conducted per state workers’ compensation law or for procedures that follow state or federal laws or regulations.

In order for the agency to issue a citation based on Section 1904.35(b)(1)(i)which involves a reasonable procedure for workers to report a work-related illness or injury promptly and accurately, OSHA has to be able to show either the company didn’t have a procedure for reporting a workplace illness or injury, or the employer’s procedure for reporting work injuries wasn’t reasonable. In other words, the procedure can’t unfairly burden or scare off an employee from filing a work injury report.

The second part of that rule, Section 1904.35(b)(1)(iv)prohibits retaliation against workers for reporting work-related injuries. This involves policies that could be used to retaliate against workers. Post-accident drug and alcohol testing are included under that umbrella. However, OSHA made it clear at the time the rule was issued that it wasn’t categorically prohibiting these activities, and it wasn’t imposing any new obligations. But the provision gives OSHA another means to address conduct that has always been against the law, which is retaliation against employees for reporting work-related accidents, injuries, or illnesses.

If OSHA were to issue a citation, it would need reasonable cause to show:

  • The worker filed a report of a work illness or injury;
  • The employer took some kind of negative action against the worker; and
  • The employer took this negative action as a response to the worker’s reporting a workplace injury or illness.

No matter whether an adverse action is taken pursuant to a post-accident drug testing policy, a disciplinary policy, or even an employee incentive program, the ultimate burden will be on OSHA to prove the employer took the adverse action because the worker reported the injury or illness – rather than for some legitimate business reason.

The latest memorandum clarifies that the agency isn’t going to issue citations unless the drug testing of employees occurs without “an objectively reasonable basis for doing so.” That means automatic drug testing policies are probably not going to be deemed acceptable. The agency stated that when evaluating whether a company had a reasonable basis for drug-testing a worker after he or she reported a work-related illness or injury, the primary question is going to be whether the company had a reasonable foundation for the belief that drug or alcohol use by the reporting employee could have contributed to his or her injury or illness. Our workers’ compensation attorneys in Charlotte know that such proof could make it difficult for a worker to obtain benefits. However, what this new memorandum continues to make clear is that if companies don’t have any reasonable basis for suspecting the worker was on drugs or drunk at the time of the accident, drug testing isn’t appropriate.

Contact the Carolina workers’ compensation lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

MEMORANDUM FOR:REGIONAL ADMINISTRATORSFROM:DOROTHY DOUGHERTY, Deputy Assistant Secretary. SUBJECT:Interpretation of 1904.35(b)(1)(i) and (iv), Oct. 19, 2016, OSHA

More Blog Entries:

Hilton v. Flakeboard America Limited – South Carolina Supreme Court Weighs Workers’ Compensation Injury Claim, Oct. 24, 2016, Charlotte Workers’ Compensation Lawyer Blog

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