OSHA’s Regulation of Post-Accident Drug and Alcohol Testing to Become Effective, For Now

On November 28, 2016, a federal district court issued an order that allowed OSHA to move forward with implementation of its controversial standards related to mandatory post-accident drug testing programs and incident-based employer safety incentive programs. As McNees previously reported, OSHA delayed enforcement of these parts of its final rule, aimed to “Improve Tracking of Workplace Injuries and Illnesses” (the “Rule”), until December 1, 2016. Absent any further developments, the Rule is set to become enforceable December 1, 2016.

However, while the Rule will become enforceable, its continued validity remains questionable. The court’s order does not dispose of the underlying complaint that asked the court to vacate the relevant parts of the Rule, the order only denied the request for a preliminary injunction. Another layer of uncertainty has been added since Donald Trump was elected president. President-elect Trump’s administration may ultimately decide to undo the relevant provisions or retreat from the prior administration’s expansive interpretations after he takes office in January 2017. This creates a situation where employers need to comply with the controversial standards for now, but OSHA or a court may indicate otherwise in the not-so-distant future. Further background on these provisions, OSHA’s guidance, and the ongoing litigation is provided below, with a focus on post-accident drug and alcohol testing.

The Controversial Provisions of the Rule

When OSHA issued the Rule in May 2016, the agency created an enforcement tool allowing it, for the first time, to independently cite employers if their policies for post-accident drug or alcohol testing, employee discipline, or safety incentive programs are deemed retaliatory because they discourage or deter injury reporting. The controversial portions of OSHA’s Rule are at 29 C.F.R. § 1904.35(b), which requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure is “not reasonable,” according to the Rule, “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” In conjunction with this requirement, the Rule prohibits employers from discriminating or retaliating against employees for reporting work-related injuries or illnesses.

Essentially, the Rule provides that blanket post-accident drug and alcohol testing policies will discourage injury reporting and could be retaliatory.. Drug or alcohol testing are not specifically mentioned in the text of the Rule. However, OSHA has provided interpretations in the Rule’s preamble and guidance that establish authority to cite employers for workplace policies that OSHA deems to have discouraged reporting or otherwise to be retaliatory. For the first time, OSHA will be able to cite an employer for retaliation even if an employee does not file a complaint. In October 2016, OSHA posted guidance on its Rule webpage related to an Employee’s Right to Report Injuries and Illnesses Free from Retaliation, including a Memorandum for OSHA’s Regional Administrators on implementation of the guidance (together, the “Guidance”). The Guidance confirms that OSHA’s enforcement will apply to both drug and alcohol testing, and that workplace testing policies implemented pursuant to federal or state law should not be affected. Yet, significant uncertainty remains for employers.

Lingering Uncertainty and Next Steps for Employers

The uncertainty surrounding the Rule is twofold. First, from a substantive perspective, implementation is not entirely clear, despite the Guidance. Employers will be forced to grapple with competing – and potentially conflicting – obligations under OSHA’s Rule and other federal and state laws as they relate to post-accident drug and alcohol testing. On one hand, employers who require mandatory post-accident testing through sound workplace policies may be cited if OSHA determines that drug or alcohol use was not likely to have been a contributing factor to the reported injury. On the other hand, if employers do not require mandatory testing across the board (e.g., for all lost-time injuries), workplace incidents related to drug or alcohol use arguably may increase, and selectively choosing individuals for testing may expose employers to claims that they profiled or targeted specific workers.

Second, such substantive issues now threaten the standards’ continued validity, through both litigation and executive action. In July 2016, several trade associations, along with a workers’ compensation insurer and its insureds, initiated the litigation described above. The action filed in the U.S. District Court for the Northern District of Texas seeks to vacate the relevant parts of the Rule to the extent they prohibit or limit routine mandatory post-accident drug and alcohol testing programs and incident-based safety incentive programs. The plaintiffs alleged that OSHA did not have authority to create the new enforcement tool for retaliation, and that OSHA disregarded substantial evidence supporting that routine, mandatory drug and alcohol testing actually enhances workplace safety. In the midst of the litigation, OSHA decided to postpone enforcement until November 1, 2016 to issue the Guidance. OSHA later agreed to further delay enforcement of the Rule until December 1, 2016, but its Guidance also urged employers to review their programs and policies to determine whether they may be deemed retaliatory with respect to injury reporting.

Now that the court has denied the plaintiffs’ request for a preliminary injunction, employers who have not consulted the OSHA Guidance and prepared for timely compliance should do so by determining whether revisions to their workplace policies are necessary. The fate of OSHA’s approach is still in the hands of the federal district court, and, even before the court decides the merits, the Trump administration may undo the OSHA standards or interpretations issued under the Obama administration or refuse to enforce them. Nonetheless, in the interim, employers must understand how the OSHA standards and the Guidance affect their programs. Risks of noncompliance include potential OSHA citations, including higher penalties in effect since August 2016.

Next Steps for Employers

As noted, the Rule is effective December 1, 2016, so employers need to take steps to ensure compliance. Need assistance? McNees contacts that can help include: Steve Matzura, Paul Clouser, Denise Elliott, Joe Sileo and Andrew Levy.