How do employers reconcile automatic drug-testing required by workers’ compensation laws with the provisions of OSHA’s new Rule saying that automatic testing could be retaliatory? Following our recent blog on that issue, many of our readers had questions. They were not alone; in fact, there was so much debate that OSHA issued a Memorandum on October 19, 2016 clarifying its position and affirmatively stating that it  will not issue citations under the new Electronic Recordkeeping Rule for drug testing conducted under a state workers’ compensation law or other state or federal laws or regulations.

The agency also delayed enforcement of the anti-retaliation portions of OSHA’s new Rule until December 1, 2016 while a challenge works its way through court in Texas.

Under the new Rule, employers must establish reasonable procedures for employees to report work-related injuries and illnesses in a manner that must not “deter or discourage” employees from making such reports. In its original commentary to the Rule, OSHA took the position that automatic, post-accident drug-testing policies may deter and discourage employees from reporting OSHA violations and, as a result, such policies would face increased scrutiny. But most employers require such testing following workplace injuries in order to ensure workers’ compensation coverage, leaving them wondering what to do.

In the October 19 Memorandum, OSHA noted that the new Rule “only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”

The agency noted that “when evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.”

The Memorandum makes clear that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used to evaluate the cause of workplace injuries and illness where appropriate.

Under the new Rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

The take-away: employers should note that the new Rule does not ban all post-accident or work-related injury employee drug-testing but rather prohibits the use of drug-testing or the threat of drug-testing “as a form of adverse action against employees who report injuries or illnesses.”

Stay tuned for news on the legal challenge to the new Rule. In the meantime, employers should review their existing policies to see whether drug-testing is currently required for all work-related accidents or injuries and, if so, consider revising them to exclude those incidents that clearly are not the fault of the employee (e.g., machine malfunctions unrelated to employee error or employee injuries caused by another employee’s negligence), unless there is an otherwise objectively reasonable basis for requiring testing for all incidents, such as state workers’ compensation law. In addition, regardless of whether the new Rule fully takes effect or is stricken, it is a good idea for the policy to clearly state that retaliation for reporting workplace injuries or accidents is strictly forbidden.