Employers that promote workplace safety by ensuring workers are not under the influence of drugs or alcohol after they suffer a workplace injury will soon face greater scrutiny from the Occupational Safety and Health Administration (“OSHA”).  A new OSHA rule that goes into effect August 10, 2016 casts serious doubt on whether employers can lawfully maintain mandatory post-incident drug and alcohol testing.

OSHA Thinks Mandatory Testing Deters Reporting

The new OSHA rule becomes effective August 10, 2016, though compliance deadlines may vary from state to state (check with your employment counsel to confirm).  When the rule becomes effective, employers must have a reporting procedure for workplace injuries that is “reasonable and [will] not deter or discourage employees from reporting” workplace injuries.  To which you say, “My business already has that.”  Perhaps you do, but if that procedure includes mandatory post-incident drug or alcohol testing, OSHA may no longer consider it to be reasonable.  Though OSHA claims that “the [new] rule does not prohibit drug testing of employees,” the Agency also states that “mandating automatic post-injury drug testing [is] a form of adverse action that can discourage reporting.”  In other words, OSHA has determined that mandatory post-incident drug and alcohol testing may be unlawful because it may deter someone from reporting an injury.

Targeted Testing Is Acceptable

However, employers may institute a more targeted policy.  Responding to employer concerns that drug testing is important for workplace safety, OSHA states that “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident.”  For example, drugs or alcohol are not likely to contribute to the workplace injury of a bee sting, so testing in that situation would be unwarranted.  But drugs or alcohol may contribute to an injury caused by a worker stumbling down a hallway before falling down some stairs; thus, testing may be appropriate.

In short, without reasonable suspicion the injured worker may have been impaired at the time of injury, OSHA may view post-incident drug or alcohol testing as likely to deter injury reporting, opening up the employer to significant fines, as discussed below.

OSHA Thinks Kudos Also Deter Reporting

Like mandatory drug-testing policies, OSHA sees incentive programs that reward employees for avoiding workplace injuries as potentially unlawful.  OSHA’s theory goes like this: if employees are rewarded for avoiding workplace injuries – with a coffee shop gift card, for instance, for each injury-free month – the employees’ desire for the gift card will deter them from reporting their injury.  Thus, such an incentive program may be unlawful.

Exception if the Law Requires Testing

Employers required by federal or state law or regulation to conduct post-incident testing may continue to do so.  Such testing, OSHA states, is not motivated by retaliation or an effort to deter reporting.  Accordingly, it does not fall within the scope of the new rule.

OSHA Gave Itself Authority to Penalize Retaliation

OSHA has always been able to investigate employee complaints that an employer retaliated against them for reporting an injury.  However, the new rule enables OSHA to cite an employer for taking an adverse action against an employee for reporting an injury, even if the employee does not file a retaliation complaint with OSHA.  And since OSHA now considers mandatory drug testing to be an adverse action, the chances an employer could be cited by OSHA are now much greater under this new rule.

Penalties Are Going Up

OSHA’s new rule coincides with greater capacity to penalize employers.  Currently, OSHA may issue penalties of up to $7,000 per violation or, for willful violations, up to $70,000.  But starting in August of this year, those penalties are expected to increase significantly to $12,400 and $124,000, respectively.

What Should Employers Do Now?

While OSHA’s new broad rule may not withstand scrutiny in the courts, employers would be wise to tread carefully in the meantime.  Employers with blanket, mandatory drug or alcohol testing policies should consider revising them to be more targeted.  For instance, require drug or alcohol testing only when the nature of the incident suggests that drugs or alcohol were a likely contributor or when the employer has a reasonable suspicion the employee was under the influence of a substance.