Margaret Stroz, MD
Medical Director, Occupational Health Center
'May you live in interesting times’ has been purported as a Chinese blessing. But indeed it may be a curse. Replace interesting with attention-grabbing, curious or thought-provoking and one would have a more accurate impression of the current state of our interesting times. For occupational health-minded individuals, a specific case of a recent rule to modernize injury data collection has curiously and confusedly been transformed into a prohibition for employers of blanket post-injury drug testing. Let me shed some light on this subject.
In May 2016, the Occupational Safety and Health Administration finalized the Electronic Recordkeeping Rule. According to OSHA, the new rule was intended “to modernize injury data collection to better inform workers, employers, the public, and OSHA about workplace hazards.” Although employers have long been required to maintain logs of injuries and illnesses, little of this data has been accessible to the agency or the general public. The rule took effect in December 2016, with phased-in data submissions beginning in January 2017 and full compliance by July 2017.
Confusion abounded through late 2016, as employers’ reacted to the third provision of the ruling whereby “An employer may not retaliate against employees for reporting work-related injuries or illnesses.” The guidance Memorandum published by OSHA in October 2016 attempted to clarify the post-accident testing policy in the anti-retaliation provisions, but lead many employers to conclude that across-the-board post-accident drug testing was prohibited. However, this was and is not the case.
Unfortunately, the confusion will not be quickly resolved. In January 2017, a new administration assumed leadership of the federal government with probable repeals to recent rules under the previous administration. In January, a cease and desist order was signed preventing implementation of new rules until the new administration would have a chance to review.
In such interesting times, how should Employers, Human Resource Representatives and Safety Officers proceed? To answer this quandary, a clear understanding of the current ruling and an awareness of the situation as it develops will be essential for companies. Employers, employees, and the public will need to monitor developments for implementation dates of the current ruling or for changes to that rule all together. With such uncertainty expected, a prudent employer’s response may be to delay policy changes with regard to post accident drug testing. Reviewing current post accident drug screening policy in light of the new rule may also prove beneficial to be best prepared to respond to any possible outcome of OSHA’s Regulation of May 2016 on Recording and Reporting Occupational Injuries and Illnesses (29CFR 1904).
Let’s proceed with some background. Each year, millions of workers suffer serious injuries and illnesses on the job. In 2013, OSHA proposed a rule to improve tracking of workplace injuries and illnesses through electronic collection of the OSHA LOG. The Recording and Reporting Occupational Injuries and Illnesses Rule, which passed in May 2016, outlined requirements of employers for the electronic submission of injury and illness reports. It did something else, as well.
While the final rule would modernize a current system by making data available electronically for public review, the data could be judged unreliable if employees did not feel free to report injuries or illnesses without fear of retaliation. The rule then, additionally made provisions to ensure that reporting would not be deterred. Guidance Memo in October 2016 provided additional direction on the Anti-Retaliation Rule, particularly regarding post-Incident Drug Testing.
It identified what is not allowed:
- Blanket post-injury drug testing policies deter proper reporting and are prohibited.
- Post injury drug testing may not be used as a form of discipline.
- Drug testing should not be routinely administered if it dissuades a reasonable employee from reporting a work-related injury due to concerns of invasion of privacy.
- Drug testing should not be used routinely, especially in cases such as bee stings, repetitive strain injury or an injury resulting from a machine or tool malfunction.
It also identified where post incident drug testing is allowed and should be used:
- Drug test is allowed and should be “used as a tool to evaluate the root cause of workplace injuries and illnesses in appropriate circumstances.”
- Drug test should be used where “there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness."
- Drug testing is allowed to comply with state and federal law, such as DOT mandatory post-accident testing.
- Drug testing is allowed when required by Worker’s Compensation Law, including premium reduction policies for post-accident drug testing
- Drug testing is allowed for pre-placement and random screening.
In thought provoking times such as ours, employers who have reviewed and reexamined their current drug screening policy will be best able to adjust to any national drug screening policy recommendations or rulings that come, with the additional awareness that occupational health stakeholders will continue to strive for improved worker’s health through sensible drug screening testing policies for workplace injuries and illnesses.
May we all enjoy the interesting times in which we live.