By Lee Dryden
The Daily Record Newswire
DETROIT — Attorneys are advising their management clients to review policies related to workplace injuries or illnesses — and post-accident drug testing — in the wake of new federal guidelines that take effect later this year.
The U.S. Department of Labor’s Occupational Safety and Health Administration issued a final rule in May that will require employers in many high-hazard industries to electronically submit injury and illness data to OSHA. They are already required to track such data — it is the reporting aspect that is new.
Employers were recently given more time to prepare as the original Aug. 10 date for enforcement was pushed back to Nov. 1.
The new rule prohibits “employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses,” according to the labor department’s website.
It also “clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting” along with incorporating the existing prohibition on retaliation for reporting.
OSHA will share the injury and illness data on its website as the organization “believes that posting timely, establishment-specific injury and illness data will provide valuable information to employers, employees, employee representatives, and researchers.”
Opinions vary about the anticipated effectiveness of the new rules, but it is clear that lawyers need to be aware of the changes to assist their clients with compliance.
Clients need to know
Employers should review post-accident drug and alcohol testing policies “since they will be more strictly scrutinized by OSHA going forward,” said Kurt M. Graham of Mika Meyers PLC in Grand Rapids.
“Any such policies that automatically test employees for an injury suffered at work will be targeted by OSHA since they are being viewed as deterring employees from workplace injury reporting,” he said. “The testing must be limited to circumstances where the employee likely contributed to the reported injury or illness.”
Graham added that the policy must include testing that can accurately identify the impairment caused by drug or alcohol use.
“Employers must consider using tests that only measure very recent drug use to determine if an employee was impaired by drugs/alcohol at the time of the accident,” he said. “Using those types of tests will be a challenge to employers since tests usually show how much drugs are in the employee’s system — not how much a particular person was impaired by a substance at the time of an accident.”
He added that employers should consider “moving away from post-accident drug and alcohol testing and implementing reasonable suspicion testing instead, or using random drug testing programs” to detect drug use before accidents occur.
Employers required to follow state and federal laws for drug testing may continue to do so, he said.
Kathleen L. Bogas of Bogas & Koncius PC in Bingham Farms, who represents employees, said many lawyers have already written on the subject in bulletins to their employer clients.
“However, I would stress to employers that you cannot and should not retaliate in any way against an employee who reports workplace injury or illness,” she said. “Training is essential for those in authority to terminate people in what is legal and not. Layers of impartial individuals should be fully informed of the circumstances before termination is approved. Objectivity is the key.”
Bogas said it is “very significant” that OSHA addressed drug testing and retaliation when issuing the rule.
“OSHA looked at various statistics and circumstances which showed that employees were reluctant to make proper reporting of injuries in large part due to the fear of retaliation and in many cases, specifically, in fear of being sent for a drug test,” she said. “The rule now clearly sets forth that mandatory drug testing after a report of injury is not permitted and that certain circumstances should exist on a case-by-case basis.”
As for employees, Bogas said they should know that the law is on their side.
“More and more laws on the federal level particularly provide ‘whistleblower’ and/or anti-retaliation protections,” she said. “While more protections do not assure that an employer will follow the law, at the minimum it provides the employee with legal protection, and, in the best-case scenario, it will stop employers from acting in a retaliatory manner.”
Who benefits?
Bogas said the rule “provides employees with the ability to truthfully and completely report workplace injuries and illnesses without the fear of retaliation according to the law.”
“The retaliation by employers can take many forms,” she said. “One is that the employer can require all employees who report workplace injuries to submit to drug testing. If someone tests positive, that employee can be fired if such is against company policy or if the person is at-will. The employer then uses the positive drug test as a mask for the real reason for termination.
“Another is that if the employee does not report timely the employer can use that as a reason for termination. Also, an employer could use the circumstances of the injury to form the basis for the termination. There will always be ways for employers to retaliate and try to pass it off as ‘legal.’”
Graham said the rule is more beneficial to employees than employers, but believes it will have a negative impact on both.
“The intention was to make the workplace more safe for employees and empower them without fear of retribution to report workplace injuries and illnesses. The result, however, is greater risk of liability for employers,” he said. “Those employers who do not want to take on that risk will have to retain employees with spotty safety records which will result in a more unsafe workplace.
“So, in the end, both employees and employers are adversely affected. The people who most benefit from the new rules are those employees with spotty safety records who can leverage the greater job and testing protections in order to remain employed. So while the rules may be well-intentioned, they do not result in sound public policy.”
Such employees could “get off on technicalities by challenging the drug test as not showing the accident was due to an ‘impairment,’” Graham said.
“At the very least, employers will more likely have to pay severance or settle disputes with such employees to sever the relationship when in the past that was not necessary. That will result in an increased cost to employers.”
He doesn’t believe the new rule will effectively decrease workplace injuries.
“Employers use drug and alcohol testing policies to deter employees from working under an impairment and to keep the workplace safer,” Graham said. “As those become watered down and employers have a greater difficulty of removing unsafe workers from the workplace, it is likely there will be more injuries rather than less.”
Bogas said, “The only way I think it will decrease workplace injuries is if the employer is now informed of more workplace injuries and illnesses and then realizes the situation or condition which is causing the injuries/illnesses and works to eliminate the risk. The purpose of the rule is much larger and the hoped-for result is much broader, but that is what I see from a practical aspect as it affects employee health and well-being.”
Graham added that employers with safety incentives and bonuses must ensure those are based on employees correctly following safety rules instead of whether they reported any injuries or illnesses.
As for significant increases in maximum financial penalties for violations — such as a boost from $7,000 to $12,471 for serious violations — Graham said there will be more financial liability for employers.
“Those penalties are only going to get stiffer since they will be adjusted to go up based on future inflation,” he said. “Employers are going to have to critically assess their safety practices to make sure they are compliant with OSHA rules.”
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