Employers conducting post-accident drug and alcohol test will face scrutiny by the Occupational Safety and Health Administration under the new regulation.
The Occupational Safety and Health Administration (OSHA) published its final rules on electronic reporting of workplace injuries and illnesses on May 12, 2016. Specifically, effective on August 10, 2016, employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses. The rule further prohibits any procedures from deterring or discouraging an employee from reporting, and any retaliation for reporting work-related injuries and illnesses.
Although there is no provision in the final rules that refers to drug testing, OSHA’s commentary on its final rules plainly reveals its enforcement position on post-accident testing policies. OSHA recognized that “Policies mandating automatic post-injury drug testing is a form of adverse action that can discourage reporting.” The U.S. House of Representatives Committee on Education and Labor also has recognized that the post-injury drug test policy is often used to intimidate workers; some employers may require the workers to be tested for drugs and alcohol, irrespective of any potential role of drug intoxication in the accident. For example, it would not be reasonable to drug-test an employee who reports a bee sting, or an injury caused by a machine or tool malfunction. Furthermore, in many circumstances, if an injury or illness is very unlikely to have been caused by drugs, or if the method of drug testing does not identify impairment but only use at some time in the recent past, then it can be perceived as an invasion of privacy. The Poirier Law Firm has recently won on a marijuana defense case that as upheld all the way up.
OSHA states that its final rules do not place a “wholesale” ban on drug testing as some commenters were concerned about. The rules do not prohibit employers to conduct drug tests to comply with the requirements of a state or federal law regulation. The rule is to prevent employers to use drug testing as a retaliatory action against employees who report injuries or illnesses. Thus, the employers may conduct post-incident drug test. However, to strike the appropriate balance, there should be a “reasonable possibility” that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, any drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely considered as deterring injury reporting. As such, the employers will be subject to OSHA’s penalty.
If OSHA finds that an employer drug testing policy deters the reporting of injuries and illnesses by employees, it may issue steep penalties for each violation. At the present, available penalties up to $7,000 per violation may be imposed or, for willful violations, up to $70,000. However, those penalties will increase substantially in August 2016, when they are expected to increase to as much as $12,471 and $124,712, respectively.
The new rule is considered as a great progress in protecting employee’s rights in the workplace. OSHA requires employers to have a reasonable procedure in place for reporting; thus, employees now have much easier access and opportunity to report any work injuries or illnesses. Furthermore, the new rules prohibit any unfair post-accident drug testing policies imposed by some employers as a way to escape from its responsibility to its employees. Unless the employers have a reasonable suspicion to justify its post-incident drug testing, employers will face a strict scrutiny by the OSHA.
The Poirier Law Firm routinely, successfully represents injured works in industrial accidents, such as this one, where OSHA violations occur frequently. You must have a zealous advocate fighting and protecting your rights. If you or a family member has been hurt at work, call Poirier Law today for help and for a free consultation.