About a month ago we hosted a webinar with our friends at Constangy, Brooks, Smith & Prophete to help you get ready for the new post-incident drug testing rules coming out of the Occupational Safety and Health Administration (OSHA). The rules were originally set to go into effect in August. The date was pushed back until November 1st, and now, thanks to a case in Texas, the new date is December 1, 2016.
The first delay happened because employers were confused about what “reasonable” reporting procedures meant when it came to post-accident drug testing and safety incentive programs. The agency offered some guidance back in October to help clear that up. The latest delay is happening because the judge overseeing the litigation of Texo ABC/AGC Inc. v. United States Secretary of Labor has requested more time to consider the issues in the case. The plaintiffs are seeking injunctive relief from the OSHA rules because it limits safety incentive programs and mandatory post-accident drug testing programs. Judge Sam Lindsey in Dallas is considering whether a nationwide injunction for employers is warranted and if the court can even impose such an injunction.
Another big issue with the rule, aside from the case in Texas, is that it originally restricted testing methods that could not indicate a person’s level of impairment. Unfortunately, no drug test can measure impairment, so employers pushed back. Alcohol is the only substance that can be tested this way, and OSHA says the rule only applies to tests that are available.
The bottom line for employers, regardless of any changes in date or guidance, is that these new post-accident rules cannot be used as a form of discipline or retaliation and they must be used in an objective and reasonable way. Employers that are regulated by state and federal drug testing laws are not impacted by this rule.
During our webinar, Tommy Eden gave us some Common Sense Steps to eliminate confusion in light of the OSHA changes. You can download the webinar recording to hear the full discussion, or read through our summary below:
Common Sense Steps to Eliminate Employer Confusion in light of latest OSHA Post-Accident Drug Testing Guidance:
1) Adopt a DFWP policy, in accordance with the State Laws, in order to reduce insurance premiums is not retaliatory and therefore seems permissible under §1904.35(b)(1)(iv), even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces Because the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or disqualification of workers’ compensation claims for statutory violations, such policies are likely to be viewed by OSHA as compliant. Having the State Agency, or attorney, written certification is highly recommended
Well Drafted BEST Practices DFWP Guidance:
- Should meet State DFWP Laws and be customized for your business
- Should cover WC and UC Disqualifications
- Should deal with Medical and Recreational Marijuana Issues
- Should handle pre-duty prescription medication disclosure under the ADA
- Should cover this new OSHA guidance
- Should be easy to read and understand by employees and supervisors
- Should include all required pre-employment and active employee signoff forms, checklists, notices and specimen documents (last chance agreement)
2) Including Disqualification for a Post-Accident Positive or Refusal language under the States’ Workers Compensation in your DFWP is a wise step to be able to show testing for a lawful and permissible purpose – reduction of workers’ compensation cost and encourage an unimpaired drug free workforce. Under Section 4 of the OSH Act employer rights concerning Workers Compensation are outside of OSHA’s jurisdiction
3) For those employers who are simply accepting an insurance carrier’s premium discount offer that includes mandated post-accident drug testing for reportable injuries, or required to be part of a self-insured workers’ compensation fund, in the absence of a State certified DFWP statute, the arrangement requiring post-accident testing should be captured in writing.
4) Adopt a customized confidential post incident/accident report form that captures:
- The how, when, who and why of the incident/accident
- Did the employee’s action, or in-action, contribute to the incident/accident, or cannot be completely discounted as a contributing factor?
- Include in checklist “triggers” matching your new post incident/accident testing circumstances or events
- Include in your checklist dual supervisor sign-offs
- Completed form is evidence of legitimate, non-discriminatory reason for the adverse action; i.e. post-accident drug test
5) Train supervisors, safety, HR and line managers on:
- Your new Post incident/accident drug testing criteria
- How to utilize your new Post incident/accident drug testing report
- Train your Drug Testing TPA, Occupational Physicians’ offices, post-accident clinics to ask if the Report has been completed as part of their authorization to conduct post-accident testing
- Train supervisors on reasonable suspicion testing & reasonable possibility testing and provide them checklist for both
- Train HR and supervisors on the use of last chance agreements as a risk reduction strategy