Workplace Drug Testing: What’s Reasonableness Got to Do With It?
On October 19, 2016, OSHA issued a letter of interpretation to clarify certain provisions 29 C.F.R. §§1904.35(b)(1)(i) and (iv) recently amended by the “Improve Tracking of Workplace Injuries and Illnesses” rule (hereinafter “the rule” or “OSHA’s rule”). OSHA’s rule requires employers to ensure “a reasonable procedure” for employees to report workplace injuries that does not discourage employees from reporting. A procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 C.F.R. §1904.35(b)(1)(i).
An employer may not discriminate against an employee who reports an injury or illness. OSHA highlighted the following examples of policies that are potentially discriminatory: disciplinary policies, post-incident drug testing policies, and employee incentive programs. Employers should evaluate their drug testing policies to be sure they conform to OSHA’s expectations.
It appears that post-incident drug testing is acceptable in at least two instances: (1) if the employer conducts the testing in compliance with state or federal law requirements or (2) if there was a “reasonable possibility” that drug use was a contributing factor in the injury or illness. Many states permit employers to conduct post-incident drug testing but, do not mandate such testing. Employers in states, such as Kentucky, Ohio, Alabama, Arkansas, Florida, Georgia, Idaho, Mississippi, South Carolina, Tennessee, Virginia and Wyoming, with Drug Free Workplace statutes take advantage of reductions in insurance premiums accompanying implementation of drug-testing policies. OSHA has indicated that it will not cite employers for conducting drug testing permitted by a state’s workers’ compensation law or other state or federal law; however, no definitive guidance has been provided.
Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work related injuries or illnesses so long as they have an objectively reasonable basis for testing. When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If the employer is determined to have the appropriate reasonable basis, then it would be objectively reasonable to subject the employee to a drug test.
When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work related injury or illness, OSHA will consider factors including the following: (1) whether the employer has 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; (2) whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness; and (3) whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness.
Article co-authored by Laura M. Goldfarb and Katrina N. Bowers