It may be time to revise your company’s drug testing and accident reporting policies (again). Many companies have policies requiring drug testing following a workplace accident. However, a new federal OSHA rule effective in August 2016 requires employers to have reasonable procedures for employees to report injuries occurring on the job that do not deter or discourage them from reporting the incident. The rule also requires employers to inform employees of their right to report work-related injuries free from retaliation and prevents employers from retaliating against employees for making such reports. The text of the OSHA policy doesn’t specifically address drug or alcohol testing, but commentary accompanying the final rule indicates blanket drug and alcohol testing following a workplace accident deters employees from reporting the accident or injury and may be a form of retaliation against employees for making proper reports.
What is a Reasonable Procedure for Reporting Injuries and When is Testing Permitted?
OSHA rules already required employers to have a procedure for employees to report work-related injuries promptly. The new rule requires reasonable reporting policies and puts employers on notice that policies discouraging reporting are unreasonable. Other examples of unreasonable policies are those that make reporting injuries too difficult or take too many steps. Employer reporting requirements should take into account injuries or illnesses that build up over time where the symptoms are not immediately obvious, like injuries that gradually appear resulting from repetitive movement.
Even though OSHA’s rule impliedly bans mandatory drug or alcohol screening following a workplace incident, an employer may keep a policy of testing if it is reasonable. To be reasonable, the policy should limit testing to accidents where drug use is likely to have contributed to the incident and where the drug test can accurately identify impairment caused by the drug’s use. For example, drug testing would likely not be reasonable in injuries resulting from repetitive strain, lack of machine guarding, a tool or machine malfunction, or a bee sting. The rule doesn’t require employers to have a standard as high as “reasonable suspicion” to administer the drug or alcohol test. Testing is also permitted when a state or other federal laws require drug testing, like with the U.S. Department of Transportation or state workers’ compensation laws.
Electronic Recordkeeping Requirement
The new OSHA rule requires certain employers to maintain electronic records of work-related injuries or illnesses. Employers with fewer than 20 employees at all times do not need to maintain or submit electronic reports. Employers with 250 or more employees or those in high-risk industries must retain electronic records and submit reports on work-related injuries or illnesses on OSHA forms 300, 300A, and 301. High-risk industries that must report if they employ between 20 and 249 employees can be found here https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf. Electronic data submission requirements begin January 1, 2017, and will be phased in over two years.
Is this Rule Effective in South Carolina?
OSHA is a federal standard and federal law. South Carolina applies SC law, which frequently mirrors federal policies. There is no indication as to whether South Carolina will adopt the same standards for post-injury alcohol or drug testing. Penalties for failing to comply with the new OSHA rules, if required to do so, range from $12,000 to $120,000. To prepare for this rule in the event SC adopts it, contact experienced employment lawyers at Gignilliat, Savitz, and Bettis who is familiar with OSHA reporting and policy requirements.