Can Employers Test for Drugs After Work Injuries?

The answer to this question used to be very clear. For decades, many employers have had internal policies that require that a drug test is mandatory after any injury suffered at work. The mandatory test was usually not required because of any circumstances surrounding the injury, but rather, it was mandatory because an injury took place. Further, refusal to take such a drug test was usually grounds for termination. The idea behind testing any employee who was injured would be to find out if the ingestion of any substance, whether it be alcohol or any other drug, had any bearing on whether the employee was injured. Intoxication is certainly a defense to a workers' compensation claim. In Pennsylvania, if an injury would not have occurred but for an employee's intoxication or illegal drug use, the injured worker is not eligible for benefits. Thus, employers have been regularly drug testing employees after an injury suffered at work for decades. This has been the practice, perhaps, until now.

On October 19, 2016 OSHA issued a memorandum indicating that automatic drug testing after a work injury could be considered retaliatory. Under the new rule, employers must establish reasonable procedures for employees to report work-related injuries and illnesses in a manner that must not "deter or discourage" employees for making such reports. In OSHA's October 19, 2016 memorandum, it was noted that the new rule only prohibits drug testing employees reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. Thus, OSHA seems to be indicating that employers must have some type of reasonable suspicion that an injury was caused by intoxication, rather than having a steadfast rule that every employee who is injured must submit to a drug test. The OSHA memorandum makes clear that drug testing may not be used by the employer as a form of discipline against employees who report an injury, but may be used to evaluate the cause of the workplace injuries where appropriate. Under the new rule, employers are required to inform workers of their right to report work-related injuries without fear of retaliation. Employers must implement procedures for reporting injuries that are reasonable and must not deter workers from reporting. In short, the new rule does not ban all post-accident or work related injury employee drug testing, but rather prohibits the use of drug testing as a form of adverse action against employees to report injuries.

On May 12, 2016, OSHA published a final rule that, among other things amended 29 C.F.R. 1904.35 to add two new provisions: §1904.35(b)(1)(i) makes explicit the long-standing requirements of employers to have a reasonable procedure for employees to report work-related injuries, and (b)(1)(iv) incorporates the existing prohibition on retaliating against employees for reporting work-related injuries under section 11(c) of the OSH Act, 29 U.S.C. §660(c).

With regard to drug testing, specifically, Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries so long as they have an objective reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury reporting. Moreover, OSHA will not issue citations for drug testing conducted under state workers' compensation laws or other state or federal laws. Drug testing under state or federal law does not violate §1904.35(b)(1)(iv). Rather, this section only prohibits drug testing employees for reporting work-related injuries or illnesses without an objective reasonable basis for doing so. For OSHA to establish a violation it will need to establish the three elements of retaliation: a protected report of an injury; adverse action; and causation.

When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use could have contributed to the injury. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA determines the reasonableness of drug testing a particular employee who has reported a work related injury, it will considers the following factors: whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer to only tested the employee who reported the injury; and whether the employer had a heightened interest in determining drug use could not have contributed to the injury due to the hazardousness of the work being performed when the injury what occurred. The general principle is that drug testing may not be used by the employer as a form of discipline against employees to report an injury or illness, but may be used as a tool to ferret out the root causes of workplace injuries and illness in appropriate circumstances.

Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate the OSHA rule. 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. 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.

What should an employer take from all this? The days of blanket drug testing may be over. If an injured worker is involved in an accident which could not have been caused by intoxication, an employer would be wise to not require mandatory drug testing or to fire that employee for refusal to undergo testing. Enforcement of OSHA's new rule begins December 1, 2016.