Is There a “Reasonable Possibility” That Your Drug Testing Policy is Retaliatory?


BY JACK L. SHULTZ & BRITTNEY M. MORIARTY Guest Writers


On November 1, 2016, a new anti-


retaliation regulation established by the Department of Labor’s Occupational Safety and Health Administration (OSHA) will go into effect. While the rule does not specifically address an employer’s use of post-injury drug testing, OSHA has stated that in an effort to improve the tracking of workplace injuries and illnesses, post-injury drug testing policies will be under scrutiny. The final rule, affecting drug testing


policies, is an amendment to 29 C.F.R. § 1904.35(b)(1)(iv). The relevant changes read “(iv) You must not discourage or in any manner discriminate against an employee for reporting a work-related injury or illness.” While the previous version of the rule required only that a business not discriminate against reporting employees, the revised version adds a prohibition of policies which may discourage reporting. OSHA contends that the perceived invasion of privacy associated with certain post-injury drug testing policies dissuades employees from reporting work-place injuries. The new rule does not act as a complete ban on drug testing policies; rather, it stops employers from using such policies as retaliation against employees who report an injury or illness. OSHA helps to define which policies may be at risk for violating the new rule. A blanket post-injury drug testing policy will almost always be deemed to deter reporting and violate the rule. Examples of such a


policy may be a drug testing requirement for any reported injury which requires outside treatment or a policy which requires a drug test for any on-the-job vehicle accident resulting in greater than $1,000.00 in damages. In these examples, the post-injury drug testing requirement is applied to a broad category of injuries with no emphasis put on the employee’s actual contribution, or lack thereof. For example, under the first policy, an employee who receives outside


the employee’s drug use contributed to or caused the injury or illness. To avoid this unnecessary testing, which


may deter reporting, OSHA will view post-injury drug testing policies under a “reasonable possibility” standard. Thus, a policy is in violation of the new rule if it requires a drug test even though the circumstances of the injury do not present a “reasonable possibility” that drug use of the reporting employee was a contributing


treatment for a bee sting would be drug tested even though he in no way had control over or contributed to the situation. Under the second policy, an employee involved in an accident which significantly damages a vehicle would be subject to a drug test even if the cause of the accident was a malfunction of the vehicle. What these policies have in common is drug testing which results from events in which it is very unlikely, or impossible, that


factor to the reported injury. Such a standard does not require suspicion of drug use. Thus, while the “reasonable possibility” standard may affect current blanket post-injury drug testing policies, policies which are more specific and fact oriented in nature may pass scrutiny. Additionally, OSHA provides that “if an employer conducts drug testing to comply


Continues NEBRASKA TRUCKER — ISSUE 5, 2016 — www.nebtrucking.com 7


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