New Rule Bans Retaliatory Drug Testing of Employees Who Report Injury

General information (provided by the CalChamber Alert newsletter) concerning the new rule banning retaliatory drug testing is listed, as well as information as to how the new rule applies to the rental industry (provided by Peter Sloan, CRA's Employee Relations Counsel) is presented in this article.

According to the U.S. Department of Labor (DOL), the new rule does not prohibit drug testing of employees, including drug testing pursuant to the U.S. Department of Transportation rules or any other federal or state law. The new rule only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

DOL states that the regulation was developed to improve tracking of workplace injuries and illnesses and to protect the employee’s right to report injuries and illnesses without fear of retaliation.

• Post-incident drug testing pursuant to a state or federal law, including Workers’ Compensation Drug Free Workplace policies. Random drug testing and pre-employment drug testing also are permitted, although in California the use of random drug testing is extremely limited.

• If there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness, such as injuries resulting from crane or forklift operations.

However, injuries relating to carpal tunnel syndrome or insect bites, or even the case of an innocent bystander who was in the wrong place at the wrong time would not necessarily trigger a drug test.

Similarly, the time-honored collective bargaining agreement can be a slippery slope.

For example: a company’s collective bargaining agreement requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury. An employee then reports a lost-time injury that could not reasonably have been caused by drug use (again we will use the example of an insect bite or carpal tunnel syndrome). A drug test would not be necessary.

These guidelines are advisory in nature and informational in content. Additional information can be found at www.osha.gov. See the complete guidelines at https://www.osha.gov/recordkeeping/modernization_guidance.html.

The rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing would likely only discourage reporting without contributing to the employer's understanding of why the injury occurred. Drug testing under these conditions could constitute prohibited retaliation.

For example, if an employee reports a repetitive strain injury or is injured as an innocent bystander and the employer requires post-incident drug testing, then that testing could violate section 1904.35(b)(1)(iv) because it is unlikely that such injuries would be related to drug use by the reporting employee. In contrast, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury experienced while operating a crane or a forklift if the employee's conduct contributed to the injury. Employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the reporting employee could have contributed to the reported injury or illness.

Question: Did Employer violate section 1904.35(b)(1)(iv) by subjecting Employee X to a drug test simply because she reported a work-related injury?

Answer: Yes.

Question: Did Employer violate section 1904.35(b)(1)(iv) for drug testing Employee X?

Answer: No. Because Employee X's conduct?the manner in which he operated the forklift?contributed to his injury, and because drug use can affect conduct, it was objectively reasonable to require Employee X to take a drug test after Employer learned of his injury. Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.

Scenario 3: Employer requires all employees who report lost-time injuries to take a drug test because the employer's private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers' compensation law. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Would OSHA cite Employer for violating section 1904.35(b)(1)(iv) in these circumstances by drug testing Employee X to secure lower private insurance premiums?

Answer: No. To maintain consistency between public and private worker's compensation coverage in the same state, OSHA will not cite employers under section 1904.35(b)(1)(iv) who conduct post-accident drug testing under private party policies that mirror the applicable state workers' compensation law.