To Test, or Not to Test? Drug Testing and Safety Incentive Programs Face Challenges by OSHA

By Sarah Judge, Zach Mayer and Brian Fisher

Employers have been asking themselves whether 2016 was the year of scrambling to meet new labor regulations. While some thought they were in the clear after the recent last-minute overtime decision, other employers were still questioning whether OSHA’s non-retaliation amendments, regulation of post-incident drug testing, and safety incentive programs would become law.

This debate started after OSHA amended 29 C.F.R. §1904.35, requiring employers to record and report work-related fatalities, injures and illnesses. Specifically, the amended statute requires employers to establish not only reasonable injury reporting procedures, but also inform employees of their right to report work-related injuries without the threat of retaliation.

The new non-retaliation provision appears innocuous at first glance.[1] In fact, the statute itself does not explicitly address drug tests or safety incentive programs. But the comments to the final rule make it clear that drug testing and safety incentive programs can potentially serve as retaliatory actions in violation of the non-retaliation provision,[2] representing a fundamental shift from how many employers implement these safety programs.

In July 2016, several employers challenged the non-retaliation provision by seeking an injunction against OSHA in the United States District Court for the Northern District of Texas. The employers alleged that a prohibition against drug testing and safety incentive programs violated OSHA’s statutory authority and requested that the court enter a nationwide injunction to enjoin enforcement of the non-retaliation provisions.   In response, OSHA delayed enforcement of the applicable statute until December 1, 2016.[3]

On November 28, 2016, just days before enforcement was to begin, the court denied the Plaintiffs’ injunction.[4] The court based this decision on its assertion that Plaintiffs’ evidence was based “almost entirely on unsupported beliefs, unfounded fear, and speculation.”[5] The court noted, however, that the denial of the injunction “is not a comment or indication as to whether Defendants will ultimately prevail..."[that is a] determination left for another day.”[6]

The court’s ruling leaves employers with a harsh reality—OSHA can begin enforcement of the non-retaliation provisions on December 1, 2016. While the court may later address the merits of the amended statute, employers must begin to tailor their drug testing and safety incentive programs to these new requirements. In the face of many unanswered questions, OSHA has provided some guidance to employers on these topics.

Drug Testing:

The comments to the final Regulation make it clear that companies will no longer be able to administer blanket post-injury drug testing.[7] Drug tests are now only appropriate if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.[8] An important caveat to this rule is that drug testing can still occur pursuant to other state or federal laws or regulations[9]—this means that commercial drivers can still be tested and that drug testing can still occur under workers' compensation regulations. However, if a drug test is not conducted pursuant to state or federal regulations, the drug test could be seen as a retaliatory action meant to deter an employee from reporting a workplace injury or illness, which could potentially be considered a violation of the amended Regulation.

Based on the interpretation of the new Regulation, employers are forced to determine what constitutes a “reasonable possibility?” To answer this question, OSHA has stated that they will examine the following factors to determine if a drug test is reasonable:

• 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