Federal court ruling means OSHA drug testing limitations are now live

published in McAfee & Taft EmployerLINC Update | December 16, 2016

By Paul Ross

As we discussed here, and here, the U.S. Occupational Safety and Health Administration made waves earlier this year with its newly announced position that employers who conduct post-accident drug or alcohol testing might violate anti-retaliation provisions in the federal OSH Act. A recent federal court decision has closed the door on employer efforts to block the enforcement of that new rule, and it is now in full force and effect.

Originally, OSHA took the position that post-accident drug or alcohol testing was a suspect practice under a retaliation analysis. OSHA announced that it would investigate retaliation claims for employees subjected to such a test, and announced a proposed standard under which those claims might be evaluated. Under that test, post-accident drug or alcohol screens would only be lawful if (1) the accident or injury occurred in a situation for which drugs or alcohol was “likely” to have contributed to the incident, and (2) the test was designed to accurately identify “impairment,” as opposed to simple use of drugs or alcohol.

Employers objected to this standard on a number of grounds, including the apparent scientific consensus that no reliable tests are available to employers that would permit them to meet the standard. One particular group of employers filed an action in federal court seeking to enjoin the enforcement of the new rule.

New rule now in effect, but with relaxed guidelines

In response to pressure from employers, OSHA twice delayed the implementation of the new standards, ultimately settling on a December 1, 2016, deadline. Then, on October 19, 2016, OSHA significantly relaxed its position on post-accident testing. At that point, OHSA made clear that post-accident drug testing is permissible, as long as it is not applied in a retaliatory manner against employees who are injured on the job.

On November 28, 2016, the federal district court in TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016) announced its decision on the employers’ request for an injunction blocking the enforcement of the rule. In denying the request, the court removed the final barrier to the implementation of OSHA’s new standards. Therefore, as of December 1, 2016, employers must be cognizant of federal OSHA requirements in crafting drug and alcohol testing programs.

What employers should be doing now

Employers should take this opportunity to review internal procedures and educate appropriate portions of their workforces. While post-accident or post-injury testing may still be appropriate, testing must be uniformly applied. Employers cannot limit post-incident testing to injured employees. Rather, all employees involved in an incident should be required to test, making clear that the employer’s motive for testing is not retaliation for the reporting of a workplace injury. For example, if a company vehicle was involved in an accident, the employer should test not only the driver, but also other co-workers in the vehicle at the time, other employees who may have sustained injuries as a result of the accident, and employee eyewitnesses to the incident.

In addition, employers will need to review and revise their policies, as necessary, to ensure they reflect the fact that post-incident testing is not limited to injured employees.

For more information, or for assistance with this or any other compliance matter, contact your labor and employment attorney at McAfee & Taft.