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OSHA Prohibits Employers Using Drug Testing as Retaliation

The Occupational Safety and Health Administration's ("OSHA") has a new position regarding mandatory drug/alcohol testing of employees following involvement in a work-place accident.

It is a very common practice among employers to require such mandatory testing following an accident or injury, and it is usually spelled out in their drug/alcohol testing policies. Employers also frequently require such mandatory testing as part of their workers’ compensation coverage, because in most states, being intoxicated or impaired at the time of a workplace accident can bar an employee’s entitlement to benefits. The fact that such a neutral policy applies to anyone who is involved in an accident also removes the risk of claims of discriminatory testing. It is also common sense that employers would want to know if an employee’s drug or alcohol use caused or contributed to a workplace accident.

However, under new anti-retaliation provisions in its new injury and illness tracking rule, OSHA has taken the position that such mandatory or “blanket” post-accident testing can discourage employees from reporting accidents and can be considered an illegal act of retaliation unless the employer had an “objectively reasonable basis for testing” under the individualized circumstances of the accident. As stated in guidelines issued on October 19, 2016:

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, 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. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

Enforcement of the anti-retaliation provisions was to have gone into effect in August 10, 2016, but OSHA has now delayed enforcement until December 1, 2016 to allow a federal court in Texas to rule on a legal challenge to the anti-retaliation restrictions involving post-accident testing. The suit seeks to block enforcement while the lawsuit is pending.

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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or FijmanM@Phelps.com.

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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