Two years ago, I discussed difficulties that could be caused by new OSHA regulations on post-accident drug testing. Here’s a link to that article: Conflicts Between Alabama Law and OSHA Drug Testing Rules. In that article, I noted that OSHA took the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable. Last week, OSHA issued a “clarification” of its position, and alleviated many of the concerns noted in my original article. Here’s a link to the clarification: OSHA Clarification on Post-Incident Drug Testing. In contrast to 2016, OSHA now recognizes the importance of blanket post-injury drug testing:
The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.
So, if an employer drug tests in order to penalize an employee, then the drug test is questionable and might result in sanctions from OSHA. Otherwise, post-accident drug testing policies are permissible. Indeed, OSHA specifically found that the following are “permissible”:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA’s clarification is very helpful for Alabama employers. OSHA’s position in 2016 conflicted with the Alabama Drug Free Workplace Act, which incentivizes employers to adopt post-accident testing policies. Now OSHA has changed course, and there is little danger to employers who adopt such policies.
Potentially, there is a conflict between Alabama’s Drug Free Workplace Act and new OSHA regulations on reporting workplace injuries.
Alabama’s Drug Free Workplace Act gives employers reductions in their workers’ compensation insurance premiums if they adopt a drug free workplace policy, which includes post-accident drug testing. Here’s a link to the Act. Drug Free Workplace Act
On August 10, 2016, the Occupational Health and Safety Administration will implement changes to its regulations that could conflict with the Alabama Drug Free Workplace Act. Under those new regulations an employer must have a “reasonable procedure” that allows employees to report on-the-job injuries. But, policies “that deter or discourage a reasonable employee from accurately reporting a workplace injury or illness” are not reasonable. OSHA has taken the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable. Thus, post-accident drug testing could subject employers to OSHA citations.
So, the Alabama Drug Free Workplace Act provides incentives for post-accident drug testing. But, the new OSHA regulations could result in citations for post-accident drug testing. Attorney Tommy Eden in Opelika, Alabama has conducted an excellent analysis of this conflict and risk reduction strategies. His discussion can be found here: Post Accident Drug Testing
On March 18, 2016, the Alabama Court of Civil Appeals reversed a trial court’s decision to award unemployment compensation benefits to an employee who refused a drug test. Austal, USA, LLC v. Alabama Dept. of Labor, No. 2141072, 2016 WL 1077243 (Ala. Civ. App. Mar. 18, 2016). In Austal, the employee failed a random preliminary drug test. He then refused to take a second, follow-up drug test. Austal’s employee handbook contained a policy permitting employees to refuse a drug test, but notifying them that refusal would result in immediate termination.
The trial court found that Austal terminated the employee for failing the preliminary drug test, which was not DOT compliant or otherwise reliable. Therefore, the trial court ordered that the employee receive unemployment compensation benefits. The Court of Civil Appeals reversed, finding that the employee was terminated for refusing the second drug test. Unemployment compensation benefits can be denied if the employee is terminated for “misconduct,” which is defined to include “the refusal to submit or cooperate with a blood or urine test after previous warning.”
Because the employee refused to cooperate with the second drug test, and because the handbook gave him previous warning of the consequences of failure to cooperate, the Court of Civil Appeals found that he engaged in “misconduct.”
Importantly, the Court of Civil Appeals sent the case back to the trial court for further review. The court found that the drug test refused by the employee must meet DOT standards or be “otherwise reliable.” In short, there are three conditions that will result in denial of unemployment compensation benefits: (1) the employee must refuse a drug test; (2) the employee must be previously warned that refusal of the drug test will result in termination; and, (3) the drug test refused must comply with DOT standards or be “otherwise reliable.”