Drug Testing and OSHA Retaliation – Can We Test or Not?

As many employers know, OSHA published a Final Rule on May 12, 2016 that amended the Code of Federal Regulations to add additional provisions regarding proper reporting and retaliation for workplace reporting. OSHA took the position that certain workplace policies may deter or discourage proper workplace reporting, including disciplinary policies, incentive policies, and post-accident drug testing policies. In other words, OSHA asserted that a blanket policy that requires drug-testing of any employee after a workplace accident is likely to discourage employees from reporting workplace injuries. Therefore, if an employee is drug-tested after an accident under a blanket policy and disciplined for violation of the policy, OSHA may later determine that the discipline was unlawful retaliation because the employer had no reasonable basis to conclude that drug use may have contributed to the accident.

While OSHA stated in the Final Rule that it was not prohibiting all blanket post-accident drug testing, it effectively did so because it went on to state that post-accident drug testing must be limited to those tests which were based on a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness. Of course, such a rule is problematic since many employers require post-accident drug testing, regardless of the particulars of the accident.

The Final Rule was slated to go into effect on August 1, 2016, but a group of trade associations and private businesses filed a lawsuit in the United States District Court for the Northern District of Texas on July 8, 2016, attempting to stop implementation of the Final Rule. Implementation was ultimately delayed until December 1, 2016, after the District Court denied the injunction because it found that the plaintiff trade associations and employers could not show that implementation of the Final Rule would result in irreparable harm. In particular, the Court did not buy the plaintiffs’ arguments that the Final Rule was a complete ban on post-accident drug testing, or that the prohibition of mandatory post-accident drug testing would somehow result in more workplace injuries.

During the pendency of the lawsuit, President Trump was elected, and on April 28, 2017, his new Secretary of Labor, R. Alexander Acosta, took office. Subsequently, the Department of Labor published a Notice of Proposed Rulemaking (NPRM) on June 28, 2017, which reflected that “OSHA intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule.” In other words, under the new administration, the Department of Labor was reconsidering the Final Rule, including the retaliation component. On June 29, 2017, the government moved to stay the federal lawsuit indefinitely in light of the NPRM. The District Court administratively closed the case shortly thereafter.

So where does that leave employers? The Final Rule is currently in effect. Under current interpretations of the Final Rule, blanket post-accident drug testing policies could be considered retaliatory and therefore violate the Final Rule. The current administration has signaled that it may rescind or modify the Final Rule, but has given no indication of when it might take action.

Importantly, employers should note that the OSH Act and the Final Rule allow for an escape hatch of sorts, in that blanket post-accident drug testing done in accordance with state law (such as Drug-Free Workplace Programs requiring drug testing) will not be considered retaliatory.

Levy Leatherman

Levy Leatherman

Associate at Baker Donelson
Levy Leatherman is a labor and employment and health care litigation associate in Baker Donelson's Nashville office. Contact Levy at lleatherman@bakerdonelson.com.
Levy Leatherman