Employment Law for Contractors
New OSHA Rule Creates Additional Drug-Testing Risks for Employers
“Unreasonable” drug testing that discourages
employee reporting of workplace injuries and illnesses can result in stiff fines
On December 1, the Occupational Safety and Health
Administration (OSHA) will begin enforcing a new rule, contained in
29 CFR 1904, that requires many employers to record and report information
to OSHA on work-related injuries and illnesses.
While for many employers the new rule may appear as
little more than another regulatory requirement, companies that drug-test their
workers must be alert to potentially serious and costly consequences.
Exempt and Non-Exempt Employers
Before we discuss the particulars of the new OSHA rule,
here are the general parameters for whether it applies to your company:
If your company had more than 10 employees at
any time during the last calendar year, you are likely required to
keep OSHA injury and illness records, and the drug-testing limitations will
apply (certain low-risk industries are partially exempt from this
requirement, but construction is not among them).
If your company had 10 or fewer employees at
all times during the last calendar year, you do not need to keep OSHA
injury and illness records, unless OSHA or the Bureau of Labor Statistics
informs you in writing that you are required to keep such records. Note
that, regardless of how many people you employ, you must report to OSHA any
workplace incident that results in a fatality or the hospitalization of
three or more employees.
Reports by Employees
Employer compliance with the new rule depends in part on
employees’ willingness to report workplace injuries and illnesses. OSHA has
identified the following factors that can discourage employees from reporting:
Retaliation. To encourage employees to report
workplace injuries and protect them from retaliation, the new rule:
requires employers to inform employees of their
right to report work-related injuries and illnesses, free from retaliation;
requires that an employer’s procedure for reporting
work-related injuries and illnesses be reasonable and not deter or
discourage employees from reporting; and
incorporates the existing statutory prohibition on
retaliating against employees for reporting work-related injuries or
Drug Testing. The “Employee
Involvement” section of the new rule states that an employer’s reporting
procedure is unreasonable if it would discourage a reasonable employee from
accurately reporting a workplace injury or illness.
One example of an unreasonable procedure, according to
OSHA, is automatic post-accident drug testing. By OSHA’s reasoning, if an
employee expects to be drug-tested after making an injury/illness report, and
they fear what the drug test will reveal, they will be less willing to make the
report, thus undermining the employer’s ability to collect, record and report
injury and illness information to OSHA.
Consequently, employer policies that require blanket
post-accident drug testing violate the new rule.
Employers who violate the new rule may be required to
pay monetary penalties, reinstate employees, and pay terminated employees back
pay. Effective August 2, 2016, OSHA has increased the maximum penalties as
Serious violation: $12,600 (increased from $7,000)
Willful or repeat violation: $126,000 (increased
Permissible Drug Testing
Employers are allowed to drug-test in connection with a
workplace injury or illness if the following conditions are met:
There is a reasonable possibility that drug use was
a contributing factor to the reported injury or illness;
the drug test can accurately identify impairment
caused by drug use; and
the drug test is not designed in a way that may be
perceived by the employee as punitive or embarrassing.
The commentary to the new rule provides that drug
testing would be considered unreasonable in response to the reporting of, for
example, a bee sting, a repetitive strain injury, or an injury caused by a lack
of machine guarding or a machine or tool malfunction.
Some employers are required to drug-test in order to
comply with other laws or requirements, creating what may appear to be a
The new rule does allow an employer to continue to
conduct drug testing in order to comply with a state or federal law or
regulation or to meet insurance investigation and workers’ compensation
requirements. In such instances, the employer’s motive would not be considered
retaliatory. Left unaddressed is the issue of employee fear of a positive
By this point you may have gathered that complying with
non-OSHA requirements on one hand, without tripping an OSHA wire on the other,
is risky business that will probably call for professional guidance.
To make sure you are complying with the new rule and
state law, you and your employment lawyer should review your drug-testing policy
and determine whether any modifications are in order. If necessary, you should
begin contemplating appropriate procedures for reporting injuries and illnesses.
You should also be vigilant in enforcing consistent application of your
You should also review your employee training practices
to ensure that you are properly informing employees of their right to report
injuries and illnesses as required under the new rule.
Taking steps to comply with the new rule will help you
avoid steep penalties and costly litigation in the future. You should also take
time to identify the causes of workplace injuries and illnesses and strive to
implement policies and procedures aimed at prevention.
For more information, see
OSHA’s FAQ page.