Drug testing without taint of retaliation

January 20, 2017

 

marijuanaMany employers in the Central Valley have implemented drug-free workplace policies, which may include post-incident drug testing of workers.  In addition, employers may also provide various incentives to employees to work in a safe manner.

bruce sarchet

Bruce Sarchet

Drug testing in the workplace has always been subject to legal challenges by employees, and safety incentives pose a risk of claims that they provide a disincentive to report workplace injuries.

A recent decision by a federal district court in Texas will make the implementation of post-incident drug testing and safety incentive programs even more challenging. This article will provide a summary of this decision, however, as always, this article does not substitute for the advice of counsel.

Here’s the background.  On May 12, the U.S. Occupational Safety and Health Administration published a rule which, among other things, expressly prohibits retaliation against employees for reporting a work-related injury or illness.

Commentary that accompanied OSHA’s final rule implied that employer post-incident drug or alcohol testing and incident-based safety incentive programs could constitute prohibited retaliation.  A consortium of industry groups challenged the anti-retaliation provisions of the rule in federal court, alleging that the new rule exceeded OSHA’s authority.

In late November, the Texas federal district court ruled that OSHA’s rule was lawful.  The court found that employers would not be irreparably harmed by allowing the new anti-retaliation rule from going into effect.

The court emphasized that the rule simply incorporates the existing prohibition on employer retaliation and employer policies that would discourage a reasonable employee from reporting an injury.

Because the rule does not include a total ban on post-accident drug testing or on incident-based safety incentive programs, the court found that it was not entirely clear whether any of the programs currently implemented by employers would violate the rule.  The court held that any such determination would require a case-by-case analysis of the specific programs used by employers.

Although this ruling allowed OSHA to implement the new rule on Dec. 1, it does not end the litigation or establish that the rule is valid. Significant legal challenges to the validity of the new rule have yet to be decided, and probably will not be resolved before the incoming Republican administration takes charge of OSHA and revisits the rule.

However, starting Dec. 1 OSHA can conduct inspections to determine whether a safety incentive or drug-testing program retaliates against an employee for reporting his or her injury or illness. Importantly, as with any inspection, OSHA must have probable cause as defined by the Fourth Amendment to the Constitution to conduct such an inspection.

These programs are not “in plain view” or subject to some random inspection. In practical terms, because there is no neutral program for inspection of these issues, OSHA will require a complaint about an adverse employment action to conduct an inspection.

This federal court decision presents practical issues for employers going forward.  Employers could discontinue their safety incentive programs or could consider revising their safety-incentive programs to remove incident-based incentives and leave in factors such as completing safety assessments, providing suggestion cards, etc., or to provide only group incentives, not individual incentives.

On the other hand, employers could decide to retain and defend existing safety incentive programs on the basis that their program does not retaliate, understanding the risk of drawing OSHA penalties.

Regarding drug testing, employers also could consider eliminating post-incident testing, or revising their current programs. Revisions to an existing policy could include documenting the federal law or state workers’ compensation law basis for requiring drug testing after an injury and illness, or adding a “caused or contributed to” requirement for selecting which employees will be subject to testing. They could also limit the drug testing triggers to include only incidents that result in property damage or injury.

Employers also could consider implementing timelines for testing (for example, eight hours for alcohol, 32 for drugs), or limiting testing methods to those which show more immediate use such as oral fluids/saliva.

Again, some employers may choose to leave their testing programs unchanged, again understanding the risk of a finding of retaliation in violation of the OSHA rule.

Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters.  You can contact him at bsarchet@littler.com.

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