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Amy DeJong
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March 21, 2017
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Post-Injury Drug Testing Policies

Since late 2013, the Occupational Safety and Health Administration (OSHA) has been working on a revision to Title 29 of the United States Code of Federal Regulations (CFR) Parts 1902 and 1904. The primary purpose of the amendment is to improve the tracking of workplace injuries and illnesses. Adoption of the final ruling was released on May 12, 2016, and the components applicable to reporting are set to become effective on January 1, 2017. Anti-retaliatory regulations were initially slated to become effective on August 10, 2016, but due to industry concerns with the scope of these regulations, the implementation date has been delayed (at the time of this writing) to November 1, 2016. The delay will impact the anti-retaliatory components that directly affect the ability of employers to perform post-injury drug screens. Given the current and impending changes, it is important that employers understand the new rules and ensure that their post-injury drug testing policies are compliant with the guidelines set forth and enforced by OSHA.

What You Need to Know
Within the final ruling, OSHA expressed concerns that employers might retaliate against employees for reporting workplace injuries. As part of the online reporting initiative, OSHA felt the need to ensure that employees had protections in place and would not shy away from reporting injuries to their employers. OSHA made three major changes to 1904.35 and 1904.36 to address this concern, listed on the next page.

  1. Employers are required to inform employees of their right to report work-related injuries free from retaliation.
  2. Reporting procedures must be reasonable and not deter / discourage the reporting of injuries.
  3. Employers are prohibited from retaliating against employees for reporting work-related injuries.

There are two major areas within written policies that will need to be reviewed and addressed to be compliant with the new OSHA rules. The first pertains to the time allowed to report workplace injuries. Most policies contain language such as, “Employees must immediately report all workplace injuries to their supervisors.” According to the final ruling, reporting procedures must be reasonable, and a procedure that would deter or discourage reporting is not reasonable. The ruling goes on to further state that unduly burdensome reporting procedures would be a violation. Reporting procedures must allow a reasonable reporting time frame once an employee has realized that he or she has suffered a work-related injury.

The second area that will require policy verbiage review relates to the prohibition of retaliation. Forms of retaliation that are prohibited include:

  • Discharge, demotion or denying a substantial bonus or other significant benefit.
  • Assigning the employee “points” that could lead to further consequences.
  • Demeaning or embarrassing the employee (i.e., requiring an employee to wear an orange hard hat or vest for a week).
  • Threatening to penalize or otherwise discipline an employee for reporting.
  • Requiring employees to take a drug test for reporting without a legitimate business reason for doing so.

The new rules also demand a closer look at post-injury drug testing practices. OSHA believes (and evidence suggests) that blanket, post-injury drug testing policies can deter proper reporting of injuries. OSHA will review policies to determine if they discourage reporting and will issue penalties based on its findings. If OSHA decides that a policy is retaliatory or otherwise deters employees from reporting injuries, the new regulations give OSHA the power to impose fines up to $12,471 per serious violation and up to $124,709 per willful violation. (Note: Fines increased on August 1, 2016.)

What You Need to Do
Many may wonder if employers should still perform post-injury drug screens given the new regulations. The answer is “yes,” but only in certain scenarios. Employers shouldn’t abandon this risk management practice altogether. Written policies should use verbiage from the final rule. Instead of testing only under reasonable suspicion, the final rule states that employers should limit post-incident testing to the following situations:

  • When there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury.
  • When the drug test can accurately identify impairment caused by the drugs used.
  • When the drug test is not designed in a way that may be perceived as punitive or embarrassing to the employee.

The specific policy wording on post-incident drug testing under reasonable possibility versus reasonable suspicion opens up the parameters to perform a post-injury drug test. The claim scenario incidents illustrated below may or may not justify a post-injury drug test. Unfortunately, employers will have little direct guidance from OSHA until the first agency decisions come out after the final rule is fully in effect. Therefore, it is important for all employers to carefully review their current policies and make conscious adjustments during the interim.

Stay a Step Ahead
Part of creating a safe work environment means encouraging employees to speak up when they have suffered a workplace injury. Not only does this help identify unsafe work practices and / or environments, but it can help connect employees with the medical attention needed to treat any accident-related injuries. It can be difficult for employers to keep up with the changing regulations and guidelines assigned by OSHA, but it is important to remain aware of any new reporting rules. Employers should review their employee handbooks and safety manuals to ensure compliance with the new anti-retaliation regulations, as well as their policies on post-injury drug testing given the new, limited scope of acceptability. Stay tuned for more developments on this topic and contact SilverStone Group’s Risk Management Team to confirm that your company’s post-injury response procedures are compliant.

Information used to write this article was obtained from OSHA.gov and Justin G. Smith at Woods, Fuller, Schultz & Smith P.C. in Sioux Falls, South Dakota.

This article originally appeared in the 2016 | ISSUE THREE of the SilverLink magazine under the title “Post-Injury Drug Test – What Does Your Policy Say?” To receive a complimentary subscription to the SilverLink magazine, sign up here.

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