By: Ryan Lawson, Associate, Atlanta

The Occupational Safety and Health Administration (O.S.H.A.) recently released an updated set of regulations governing employer requirements for workers reporting occupational injuries and illnesses. These updated regulations, which are codified at 29 CFR 1904.35, went into effect on November 1, 2016 following a short delay from the initially scheduled inception date of August 10, 2016.  One of the areas directly targeted by these new regulations is the employer practice of requiring an employee to undergo a mandatory post-accident drug screen secondary to an employee’s report of an occupational injury or illness.

Due to the potential of uncovering this intoxication defense, as well as the potential ability to uncover intoxication that could lead to termination “for reasons unrelated to the accident or injury,” many employers put in place mandatory post-accident drug screens which occur right after the employee’s report of accident. This standardized drug-testing protocol is exactly what is being targeted by the new O.S.H.A. regulations.

As indicated above, the new regulations are codified at 29 CFR 1904.35, with the most relevant portion to this inquiry being found at 29 CFR 1904.35(b)(1)(i) – (iv). This section holds, in part:

You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness; (ii) You must inform each employee of your procedure for reporting work-related injuries and illnesses; (iii) You must inform each employee that: (A) Employees have the right to report work-related injuries and illnesses; and (B) Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses; and (iv) You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness. Id.

Mandatory post-accident drug screens may run afoul of the new regulations when an employee is discouraged from reporting an accident or injury on account of the mandatory drug testing policy, thus making the employer’s accident reporting procedure “unreasonable” under the revised O.S.H.A. standard. Therefore, it is very important that employers revise their post-accident procedure in accordance with the amended O.S.H.A. procedures and guidelines.

As these new rules only recently went into effect, there is very limited information available regarding exactly how these new provisions will be enforced. Therefore, it is prudent to air on the side of caution until more information comes out on what is an acceptable post-accident drug screening policy.  However, on October 19, 2016, O.S.H.A.’s Deputy Assistant Secretary, Dorothy Dougherty, issued an interpretation on the new rules, which included this statement:

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… Moreover, OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. Drug testing under state or federal law does not violate section 1904.35(b)(1)(iv). (Citations omitted). Section 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. And, as in all cases under section 1904.35(b)(1)(iv), OSHA will need to establish the three elements of retaliation to prove a violation: a protected report of an injury or illness; adverse action; and causation.

The question, therefore, becomes what constitutes a “reasonable basis” for requiring a post-accident drug screen. What is clear is that blanket drug testing, even when done under the auspices of a workers’ compensation drug screen protocol, is a policy which is very likely to be seen as a violation of the new rules.

If you have specific questions regarding your company’s drug screening policy, or wish to discuss ways to revise your drug testing protocol to maximize your ability to defend workers’ compensation claims while remaining in compliance with new O.S.H.A. provisions, please do not hesitate to contact any of our attorneys in Florida, Georgia, Tennessee or Alabama.