Learn More on 51风流 WebED Oct. 31 from 2-3:00 p.m. ET
Following an 51风流 with the head of the U.S. Occupational Safety and Health Administration (OSHA) and an 51风流-backed from dozens of members of Congress, OSHA on October 19 published to clarify its injury and illness recordkeeping and reporting rule, which recalibrates the agency鈥檚 position relating to post-incident drug testing in the context of employer discouragement of or retaliation for employee injury and illness reporting. Register today for 51风流鈥檚 complimentary webinar鈥($49 for non-members)鈥攄iscussing this topic and the recordkeeping and reporting rule as a whole on Oct. 31.
Generally speaking, the new guidance is more likely than the agency鈥檚 previous position to not overly restrict many construction companies鈥 existing policies regarding employee post-incident drug testing. However, the agency notes that drug testing employees whose injury could not possibly have arisen from any particular incident, like muscular skeletal disorders (e.g., tendonitis), would likely violate the rule. Additionally, the agency that OSHA will not issue citations under the rule for post-incident drug testing conducted in accordance with state workers鈥 compensation laws鈥攚hether drug testing under the law is mandatory or voluntary.
To provide background, OSHA first published its intent to provide greater scrutiny of mandatory, post-incident drug testing programs buried within hundreds of pages of its response to comments to the injury and illness recordkeeping and reporting rule on May 12. There, the agency noted that employer 鈥渄rug testing policies should limit post-incident drug testing to situations in which employee drug use is likely to have contributed to the incident.鈥 OSHA went on to state that 鈥淸e]mployers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness for an employer to require drug testing.鈥 This approach deeply concerned 51风流, as OSHA seemingly set two different, difficult to distinguish, and problematic to prove (鈥渓ikely to have contributed鈥 and 鈥渞easonably possibility鈥) standards concerning when employers could execute post-incent drug tests in accordance with this rule.
In its new guidance, OSHA recalibrates those previous statements. Now, when an employer conducts post-incident drug testing in the confines of illness and injury reporting, OSHA will evaluate:
- Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness;
- Whether other employees involved in the incident that caused the injury or illness were also tested; and
- Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
Again, the agency also provides a bright line exception that drug testing for injuries that could not possibly have been caused by drug use鈥攕pecifically noting 鈥渁 receptive strain injury鈥濃攚ould likely violate the rule.
Lastly, OSHA provides to the extent to which its rule does not apply when employers conduct drug tests in accordance with state workers鈥 compensation laws. The agency notes in several examples that where an employer drug tests employees to receive a reduction in its workers compensation premiums under, for example, the state鈥檚 voluntary Drug-Free Workplace program, that drug testing does not violate the OSHA injury and illness recordkeeping and reporting rule.
The anti-retaliation provisions, which covers the drug testing issues within the rule, go into effect on . To register for 51风流鈥檚 webinar on this topic, click here.
If you have questions, please contact Kevin Cannon at cannonk@agc.org or Jimmy Christianson at christiansonj@agc.org.