OSHA’s final rule on post-accident drug testing requirements — specifically around employer retaliation and under-reporting of unsafe conditions — seemed to be an attempt to clarify these often-abused provisions. It seems, however that OSHA may have actually complicated things.

Simply put, OSHA is trying to address the issue of under reporting unsafe conditions and retaliatory behavior of employers with specific employees. The problem is, the new language provided references the term “objectively reasonable” throughout the text/body of the rule. “Objectively reasonable” sounds like a lot open ground for interpretation. And that’s where the legal battles will begin.

Within the updated rules, OSHA does provide examples of how how drug testing policies can be abused. The following quote is where it gets interesting:

“Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”

Now correct me if I’m wrong, but if OSHA is trying to help employers get to the “root cause” of the injury/illness, how is limiting a post-accident drug policy for cumulative trauma (CT)/repetitive strain injuries going to help anything? If the employee in question chooses to use illegal drugs away from work, then as a result, has to work harder(physically and/or mentally) to do the same job because of the impairment, and then has an injury, how is that not the “root cause”?

So this is where the rubber hits the road for me with the updated rule. If the injured employee is using illegal drugs during and after the “event,” how is the employer to successfully return the injured employee back to work? If they continue to use the drugs, any and all treatments could be stunted/compromised in effectiveness, thus keeping the employee away from work longer, hurting himself and the employer.

The long and the short of it is that with the updated ruling, employers are going to have to be even more diligent with their drug testing policies. In regard to the Return-to-Work process, additional drug testing might be another step that is needed when an employee is out on transition/light duty.

It’s also interesting to see that the following verbiage is provided by OSHA as well, ”OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. Drug testing under state or federal law does not violate section 1904.35(b)(1)(iv). See sections 4(b)(1) and 4(b)(4) of the OSH Act, 29 U.S.C. §§ 653(b)(1) & (4). Section 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. And, as in all cases under section 1904.35(b)(1)(iv), OSHA will need to establish the three elements of retaliation to prove a violation: a protected report of an injury or illness; adverse action; and causation.” With this statement, it also appears OSHA is trying not to step on too many toes, as state-based Drug Free Workplace programs have been very effective in the past.

Since OSHA won’t be enforcing this updated rule until November 1, 2017, we do have time to prepare. Of course, automation is the key to consistency. With an automated RTW process, the employer can confirm that each process step has been taken every time.

As a final note, with new leadership in the White House, all these new rules could be subject to change, so before you change your processes, it might be wise to keep a close watch on what President Trump does.

Check out our white paper to learn more about Analyzing the Unintended Consequences of Updates to the OSHA Post-Accident Drug Testing Rule.