New OSHA reporting rule also impacts drug-testing policies

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By Erik Eisenmann
and Laura Ferrari
Whyte Hirschboeck Dudek

Whyte Hirschboeck Dudek recently published a special report regarding a new Occupational Safety and Health Administration rule that will increase employers’ reporting requirements for workplace illnesses and injuries.

In furtherance of its goal of getting more complete and accurate reporting, OSHA has made it clear that policies that “discourage” employee reporting are prohibited. Although not included in the text of the amended regulation, OSHA has specifically discussed employers’ drug-testing policies in the comments that accompany the final rule. Because this new rule may affect how post-incident testing policies are developed and rolled out, employers should take note.

Of particular concern for OSHA are blanket policies that mandate drug or alcohol testing, and sometimes both, after any accident or injury. Although OSHA acknowledges that drug testing “may be a reasonable workplace policy in some situations,” it argues that such testing “is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

As such, OSHA states that employers should adopt policies that limit post-incident drug testing to “situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

The rule, however, does not affect testing that is required by state or federal laws or regulations, such as worker’s compensation laws. Rather, it is aimed at prohibiting the use or threat of drug testing as a form of retaliation against employees who report workplace incidents.

In light of OSHA’s comments, employers may want to consider revising their post-incident testing policies such that there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” before requiring testing.

Erik Eisenmann and Laura Ferrari are attorneys at Whyte Hirschboeck Dudek in Milwaukee. Eisenmann can be reached at 414-978-5731 or [email protected], and Ferrari can be reached at 414-978-5368 or [email protected].