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The final rule does not ban drug testing of employees, but it does prohibit employers from using drug testing or the threat of testing as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published Wednesday and taking effect on Jan. 1, 2017.
"OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting," the agency said in the rule.
"If an employer has that type of a broad-based policy, they would want to take a close look at it and see if it needs to be tailored in any way," said Daniel Davis, special labor and employment counsel with Proskauer Rose L.L.P. in Washington.
To strike the appropriate balance, employer policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident and for which the drug test can accurately identify impairment caused by drug use, according to the final rule. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or a machine or tool malfunction.
"The regulatory guidance in the final rule clearly does not say that drug testing is off limits," he said. "It says drug testing is available in certain circumstances. It needs to be a more detailed analysis as to why we want to have this drug testing policy, when do we want it to apply and why. That will flesh out the employer's rationale for the policy and help determine when it should have a drug testing policy."
Employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness for the employer to mandate the testing, according to the rule.
The agency is also concerned about and has seen examples of drug testing done in a way that humiliates employees who report injuries and illnesses, David Michaels, assistant secretary of Labor for Occupational Safety and Health, said during a stakeholder call on Wednesday.
But OSHA dismissed concern that its stance would conflict with drug-testing requirements contained in workers compensation laws, partly because the Occupational Safety and Health Act prohibits the agency from superseding or affecting these laws.
"This concern is unwarranted," the agency said. "If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and the final rule would not prohibit such testing."
Stakeholders have major concerns about the fairness of and potential data manipulation under the U.S. Occupational Safety and Health Administration's final electronic record-keeping rule.