To Test or Not to Test?
OSHA’s new anti-retaliation rule creates challenges for roofing contractors that use drug-testing procedures.
Amid the rapid changes in marijuana policy and OSHA’s controversial new Anti-Retaliation Rule, employers face challenges when implementing policies for drug testing and accident reporting. To make the matter even more confusing, OSHA has changed the deadline for implementation multiple times.
The deadline changes were due in large part to a lawsuit regarding the anti-retaliation provision included in OSHA’s amendment to its rules.
OSHA initially published the final rule on May 12, 2016. The anti-retaliation provision was set to go into effect that August, and the reporting provision in January 2017. Employer groups filed a lawsuit in the U.S. District Court for the Northern District of Texas in July 2016, causing OSHA to extend the deadline for the anti-retaliation provision to take effect on Nov. 1, 2016.
In mid-October, the employer groups filed an injunction challenging the anti-retaliatory provision. In response to the motion, the deadline for implementation was pushed further back to December 2016. On Nov. 28, 2016, the District Court denied the injunction and the anti-retaliatory provision finally went into effect on Dec. 1, 2016.
OSHA’s new rule is an amendment regarding employee involvement in recording and reporting work-related injuries and illnesses. It will add two provisions to the current rule. Per OSHA’s regulation, section 1904.35, the first provision states: “[Employers] must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” The second, and more controversial provision, simply states: “[Employers] must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”
In a 2016 memorandum clarifying the provisions, OSHA listed several situations where a reporting policy would be unreasonable to include: (1) Disciplining employees for failing to report the injury or illness before they realized they had it, or requiring employees to report “immediately” when they’re incapacitated because of the injury or illness; and (2) Requiring employees to report the injury or illness in person.
OSHA stated that the anti-retaliation provision’s purpose was to address certain types of policies that can be used to retaliate against workers for reporting injuries or illnesses. The anti-retaliation provision doesn’t prohibit disciplining employees who violate legitimate safety or reporting procedures. Instead, the provision prohibits disciplining employees for simply reporting an injury. This prohibition includes policies that discipline any employee who reports an injury, or a statement by the employer indicating they disciplined the employee for reporting. OSHA will evaluate the reason for discipline and if it’s determined that the real reason for the discipline was reporting the injury or illness, OSHA will issue a citation.
The second issue that the anti-retaliation provision seeks to address is post-accident drug testing policies. OSHA prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis. This means that immediately requiring an employee to face a drug test after an injury may be prohibited. In order to show a reasonable basis for the post-accident drug testing, the employer must reasonably believe the injury/accident was due to the employee being under the influence of a drug or that the drug test is required by federal or state law (i.e., worker’s compensation). Further, the drug test must be able to accurately identify impairment caused by drug use at the time of the incident. This means that an employer who believes that their employee’s injury was caused by her/him being under the influence of marijuana would be prohibited from drug testing them. This is because current drug tests for marijuana show that the body has the drug in its system, and not when it was used or the level of impairment caused. Therefore, OSHA will only allow drug tests to determine impairment at the time of the injury for alcohol, and no other drugs.
Candidly, OSHA’s new policy creates a variety of constitutional issues and forces roofers to choose between insurance discounts and drug free workplaces or risking OSHA non-compliance. As the new rule continues to evolve, there may be additional verbiage that may protect employers seeking to use drug-free work place polices. However, as it stands now, there’s a clear conflict between OSHA’s new anti-retaliation policies and drug-free work zones.
Editor’s note: This is the second column of a two-part series exploring the impact of new marijuana legalization efforts on the roofing industry. See the July 2017 edition of Roofing Contractor or click here to read part one.