To avoid this unnecessary testing, which may deter reporting, OSHA will view post-injury drug testing policies under a “reasonable possibility” standard.


with the requirements of state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.” For example, if an employer’s post-injury drug testing policy has been established to comply with its state’s Drug Free Workplace statute or mandated federal testing (DOT), the goal of the policy is clearly to adhere to state or federal law and not to act as deterrence to reporting an injury. Thus, drug testing policy established to comply with state and federal law are not of the kind which the new rule sets out to eliminate.


If OSHA finds that an employer’s post-


injury drug testing policy is in violation of the new rule they may issue a citation to the employer for retaliating against employees who report work-related injuries and illnesses. OSHA holds the right to issue a citation even if no employee has filed a complaint under section 11(c) of the OSH Act. If an employee is terminated as a result of a retaliatory drug testing policy, OSHA may require abatement including the reinstatement of the employee and payment of back pay.


In an effort to improve the tracking


of workplace injuries and illnesses OSHA has taken a stance against policies which may function as a deterrent to reporting. Post-injury drug testing policies have come under this scrutiny. Under the new rule, OSHA requires that there be a “reasonable possibility” that drug use by an employee was a contributing factor to the reported injury before an employer requires the employee to undergo a drug test. Employers with drug testing policies established in compliance with state and federal laws and regulations will not be affected by the rule change. However, employers with blanket post- injury drug testing policies, or any policy established outside of compliance with state and federal laws, should revise their policies to adhere to the “reasonable possibility” standard.


Jack L. Shultz and Brittney M. Moriarty may be contacted at (402) 434-3000, or at O’Neill, Heinrich, Damkroger Bergmeyer & Shutlz P.C., L.L.O. or by email at jshultz@ohdbslaw.com


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


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