By: Geoff Alexander, Associate, Birmingham

Recently, OSHA began enforcing its new regulation requiring employers to have a “reasonable procedure” for employees to report work-related injuries and illnesses.  The rationale for this new requirement is that employees should not be punished in any way for exercising their right under the Occupational Safety and Health Act to report a work-related injury.  Any adverse action that is taken because an employee exercises this right to report is viewed by OSHA as a violation of §11(c) of the OSH Act, and as of August 10, 2016, of §1904.35 as well. 

Under this new regulation, §1904.35(b)(1), a procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  Although the regulation itself does not mention drug testing, the Agency made clear in the Preamble to the new rule published in the Federal Register of 2016, it believes blanket post-injury drug testing policies may deter proper reporting and would thus be subject to OSHA citation. 

OSHA’s interpretation of its new reporting regulation has generated confusion among employers who are concerned that they will be cited when conducting post-accident drug tests. If an employer’s motivation for having post-accident drug testing is for some valid reason other than discouraging employees from reporting injuries and illnesses, most are of the opinion said valid  policy will not run afoul of §1904.35.  Alabama and many other states have Drug Free Workplace (DFWP) statutes that offer employers a reduction in their worker’s compensation insurance premiums if they adopt a program in compliance with the terms of the statute. Alabama’s statute does require post-accident drug testing. 

Therefore, consider these 3 strategies. First make sure your written policy is in compliance with the Alabama DFWP and secure a letter of acceptance from the Alabama DOL. Second, obtain a written document from your workers’ compensation carrier, or fund, that you are receiving a premium discount for a program that includes post-accident drug testing. Finally, like the DOT post-accident testing regulations, employers should give consideration to expanding their post-accident definition as evidence that it is not a blanket test, but that tests are to be based on specific, objective, safety-related triggering events.