In May 2016, the Occupational Health and Safety Administration (OSHA) published its Final Rule to Improve Tracking of Workplace Injuries and Illnesses. This rule generally applies to companies larger than 250 employees, but can also control smaller employers if they are involved in higher risk fields like construction. The rule increases the responsibility to electronically submit injury and illness data which OSHA will then publish on its website after removal of personally identifiable information to protect individual employees. The goal of the rule is to “nudge” employers to improve workplace safety and demonstrate that their workplaces provide safe and healthy environments for their employees.
One of the many potential impacts of this new rule is its effect on drug testing policies. While the rule does not prohibit drug testing of employees, it does specifically state that “blanket post-injury drug testing policies deter proper reporting” and prohibits employers from using drug testing as a form of adverse action against employees who report injuries or illnesses. OSHA suggests that, to strike an appropriate balance, drug testing policies should limit post-incident testing to situations when drug use or employee impairment is likely to have contributed to the incident. Further, a drug test should be used only if it can accurately identify impairment caused by such drug use, and would assist the employer in identifying the cause of the incident. The rule points out that employers need not specifically suspect drug use before testing, but that there should be a “reasonable possibility” that drug use was a contributing factor to the injury or illness. Under the rule, “for example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”
DRUG USE ON THE RISE
While traditionally the drug most commonly associated with testing in an employment setting is marijuana, other drugs which can impact safety are rapidly becoming more prevalent. According to the U.S. Department of Health and Human Services, drug overdose is the number one cause of injury-related death in the United States. Drug use, drug overdose, and addiction have become more rampant in the past decade and, unfortunately, this epidemic has far reaching implications, including jobsite accidents. Heroin use in particular is an increasing issue, with the death rate in the United States for heroin overdose doubling from 2010 through 2012.
In addition to heroin and other illegal drug use, 23 states as well as the District of Columbia and Guam have legalized the medical use of marijuana. Alaska, Colorado, Oregon, and Washington are currently the only four states in which recreational marijuana (cannabis) use has been legalized. Nevertheless, decriminalization and legalization of marijuana is gaining ground throughout the nation.
Most contractors already have well-established drug testing policies and often test automatically after any accident or incident on a jobsite. However, in light of OSHA’s new rule, contractors should revisit current post-incident drug testing policies to ensure that they are not overbroad. While it is not clear exactly what OSHA intends with the requirement that there be a “reasonable possibility” that drug or alcohol use was a “contributing factor” to the incident, employers should contemplate what that would mean in their particular area in the industry. For example, if an employee falls from scaffolding, it may be reasonable to test him post-incident as drug or alcohol use could impact balance. On the other hand, if an employee reports that he developed carpal tunnel syndrome from repetitive work on a particular piece of equipment, drug testing is unlikely to be appropriate. The main consideration is whether or not the policy is, or has the appearance of being, punitive to an employee who reports an injury or illness.
Contractors must also not overlook other employment laws that may come into play when assessing their drug testing policies. The Americans with Disabilities Act (ADA) protects individuals from discrimination based on disability. While many disabilities are visible, there are some which are not as readily apparent. For example, if an employee requires pain medication for a back issue, the medication could interfere with the employee’s ability to perform his job. If an employer has a well-thought out drug testing policy in place, it can test the employee and act in accordance with its policy based on the results. However, if the employee discloses that he is being prescribed medication and that he is experiencing side effects, the employer may need to consider whether that condition is a disability under the ADA and therefore carefully examine the issue of reasonable accommodations for the employee.
On the other hand, private employers in most instances do have some right to test job applicants and/or employees and often have a legitimate interest in doing so. Typically, employers need to establish procedures regarding chain of custody to ensure proper identification, labeling, and handling of samples, and applicants or employees should have the right to request a retest of a confirmed positive sample should they disagree with the results. Employers in states with legalized marijuana should also clearly establish how they will handle positive results, keeping in mind that they are within their rights to have a zero-tolerance policy, especially in an industry with serious safety concerns and risks.
In short, the additional complications that the new OSHA rule gives rise to add considerable complexity to these already complex issues. Given that, when it comes to a drug testing policy, the best practice in the current climate is to carefully consider existing policies and to revise them where necessary to comply not only with the changing regulations but also to fit the needs of the changing drug use landscape. ■
About the Author: Thomas More Buckley, Esq., is a partner with Hedrick, Gardner, Kincheloe & Garofalo (www.hedrickgardner.com), one of the largest litigation and dispute resolution firms in the Carolinas. His practice focuses on business litigation, with a particular emphasis on defending contractors in construction disputes. He also is a member of the Construction Law and Litigation Committee of the International Association of Defense Counsel. Buckley can be reached at .
Modern Contractor Solutions – June 2016
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