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Judge Sam A. Lindsay, United States District Court, denied a request for injunction against OSHA’s new post-injury reporting rule.  This development provides many answers to questions about the implementation of OSHA’s new rule.  Let’s look at what it means and what it doesn’t mean for post-injury drug testing.

OSHA Injunction Denied – What It Means

The decision to not grant an injunction means that OSHA’s new reporting rule goes into effect December 1, 2016.  This new rule contains provisions meant to discourage employers from using retaliatory measures that would discourage injury reporting.  This means that it is in an OSHA covered employers’ best interest to review their post-accident/post-injury workplace policies to ensure they are compliant with the new rule.  Surprisingly, per court documents, OSHA believes employers will not have much to do, if anything at all, to be compliant:

“That is not enough to establish that irreparable harm will result from whatever limited adjustments (if any) may be required by the Rule’s incorporation of the existing prohibition on retaliation.”

This also means that OSHA’s October 19, 2016 memo is so far the best employers have to go on for now.  Employers must have a reasonable basis for conducting post-injury drug testing.  Factors to consider to determine a reasonable basis include:

  • Whether the drug test results can provide insight into why the injury or illness occurred.
  • Whether other employees involved in the accident or injury were also tested.
  • Whether the employer has a heightened interest in determining drug use due to the safety-sensitive nature of the workplace or job.

OSHA Injunction Denied – What It Doesn’t Mean

The decision to deny an injunction does not mean that the case against OSHA’s new reporting rule is over.  To the contrary, this means that the judge must make a final decision at a later date.  According to Judge Lindsay in the court documents:

“That the court has denied injunctive relief requested by Plaintiffs is not a comment or indication as to whether Defendants will ultimately prevail on the merits.  This determination is left for another day.”

As well, this decision does not mean that employers may not conduct post-injury drug testing.  It does not change the actual OSHA rule, which does not actually ban post-injury drug testing:

“Although the preamble to the Rule references the types of safety programs that Plaintiffs seek to maintain, the Rule does not include a per se ban on post-accident drug testing.”

It does mean that many employers will need to review their policy and adjust ensure compliance.  In fact, Judge Lindsay stated that part of his reasoning to deny injunction comes from the fact that “none of the declarations submitted by [Plaintiffs] explains why these programs cannot be modified to comply with the Rule without losing their effectiveness.”

A Quick Compliance Checklist

What types of modifications may be required come December 1, 2016?  Review the questions below:

  1. My policy requires automatic blanket testing of anyone involved in an accident? Yes/No
  2. My policy uses post-accident triggers such as a dollar amount of damage? Yes/No
  3. My policy requires drug testing after any workplace accident, no matter the scale? Yes/No

If you answered yes to any of the items above, then your policy leaves you open to a high risk of OSHA citation.  Changing the definitions, criteria, and decision making process may be required to ensure compliance.  There are exceptions of course.  Employers that are complying with state or federal drug testing requirements are not affected.

Here’s another checklist.  Review and see how it compares to the one above.

  1. My policy has been reviewed recently for OSHA compliance issues? Yes/No
  2. My policy limits post-accident testing to situations and individuals where there is reasonable cause to believe impairment played a role? Yes/No
  3. My supervisors and managers are trained to recognize signs of substance abuse and document them for reasonable suspicion purposes? Yes/No

If you answered yes to any of these questions, then you are already on your way to OSHA compliance.  While we will need to wait and see how this plays out after December 1, 2016, by avoiding a few pitfalls and following a few best practices now, employers can proceed with relative confidence.

Common Sense Recommendations

Review your policy! Post-accident policies should be reviewed and updated to ensure the language cannot be construed as “blanket” and therefore be presumed to be retaliatory and deter or discourage reporting.

Review your state laws!  We know state laws can be a part of an employer policy as well as the enforcement of post-accident or post-injury. Many states have laws that apply to employers in that state.  Adherence to state Drug Free Workplace and state worker’s compensation laws will not change and OSHA will not find a violation of 1904.35 (b)(1)(iv) when post-accident testing is performed in compliance with these laws.

Use a decision tree for performing post-accident/incident drug testing and document, document, document.

Consider training on post-accident “reasonable suspicion/basis” for your supervisors and managers and review your reporting procedures to streamline the process making reporting easier for employees.

Consider lab based oral fluid drug testing to show closer link to recent use.

To learn more, view the court documents here.

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