Does your company have a blanket, post-accident drug testing policy?  Employers with this type of drug testing policy are concerned that they may run afoul of a new Occupational Safety and Health Administration Final Rule, which OSHA is set to begin enforcing on November 1, 2016.

The final rule, which went into effect on August 10, 2016, requires employers to establish reasonable procedures for employees to report work-related injuries and illnesses.  The rule further requires that any policy or procedure “not deter or discourage employees from reporting.”  The new requirements set forth in 29 C.F.R. § 1904.35 are part of OSHA’s ongoing efforts to encourage “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”

The rule itself does not mention employer drug testing policies, and OSHA claims that the “final rule does not ban drug testing of employees.”   That said, the comments to the final rule highlight OSHA’s belief that blanket, post-accident drug testing policies may “deter proper reporting” of job-related injuries and illnesses.  They also reiterate that the final rule prohibits employers from “using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  The logic is that blanket drug testing after accidents could be perceived by employees as an invasion of their privacy or as “punitive or embarrassing,” such that an employee may not report the accident or injury to avoid a drug test.  Thus, according to OSHA, a drug test under those circumstances would not positively contribute to workplace safety.

With that in mind, OSHA cautions that there should be a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” for an employer to reasonably require a drug test after an accident.  This could take the form of using objective criteria to determine the need for a drug test following an accident.  Objective criteria could include, for example, establishing that post-accident drug testing will be limited to circumstances involving a serious bodily injury or property damage above a certain amount.  OSHA has not yet issued enforcement guidance on this issue, so employers are somewhat left in the dark in planning for November 1.

In the interim, however, employers will be watching litigation on this issue currently underway in Texas.  As we have reported previously on the Work Knowledge Blog, a group of employers has sought injunctive relief in the Northern District of Texas to prevent the enforcement of the anti-retaliation provisions of the final rule.  The issue is still being briefed by the parties, so the federal court has yet to rule.  Most recently, the Department of Labor filed an objection seeking to limit the scope of the relief sought by the employers and preclude a nationwide ban on enforcement.  The employer group responded, citing various case law authority that federal district courts are entitled to enter nationwide injunctions.  We will continue to monitor the litigation and provide updates as they are available.

Despite the litigation, OSHA is still set to begin enforcing this new rule on November 1, 2016.  So now is the time for employers who have blanket post-accident drug testing policies to revisit such policies to ensure they conform to OSHA’s requirements, as well as those of other state and federal laws.  If you need assistance reviewing and revising your drug testing policies, contact an experienced employment law attorney to assist you.