Drug and Alcohol Testing May be Considered Employer Retaliation

On May 12, 2016 the Occupational Safety and Health Administration (OSHA) implemented changes in work-related injury and illness reporting, and retaliation by employers after injury or illness reports. These changes will take effect in two stages, with the anti-retaliation policies effective Nov. 1 and the reporting rule effective Jan. 1, 2017.

While changes to OSHA’s work-related injury and illness reporting rules may have broad implications nationwide, changes in OSHA’s anti-retaliation policies may not herald as much change in Minnesota.  Minnesota regulations regarding employer retaliation – specifically with regard to drug and alcohol testing – have long been in place.  The updates to employer actions which OSHA considers retaliatory now include certain drug and alcohol testing following work-related injuries and illnesses, a change employers should take note of in order to ensure their compliance.

Before requiring drug or alcohol testing for employees who have been involved in a work-related accident, Minnesota employers need to consider whether a reasonable basis exists to suspect that drugs or alcohol played a role in the accident. If employers do not have a reasonable suspicion that drugs or alcohol played a role in the accident, then the testing may be deemed retaliation.

Overview of Changes to OSHA Reporting and Retaliation Policies

• Employers are prohibited from retaliating against employees for reporting work-related illnesses and injuries.
• Employers must inform employees of their right to report any illnesses and injuries sustained while working. Employers must also inform employees that they will not be subject to any retaliation for reporting illnesses or injuries.
• Employers must ensure that protocols for reporting work-related illnesses and injuries do not discourage employees from reporting.

OSHA’s Expanded Definition of Retaliatory Actions

Under the old OSHA rule, employers were prohibited from taking retaliatory actions considered extreme, such as termination. However, the new rule prohibits employers from taking seemingly less extreme retaliatory actions that might dissuade employees from reporting work-related illnesses or injuries. Retaliatory actions may include (but are not limited to):

• Workplace safety incentive programs
• Use of injury reports as a foundation for advancement or discipline decisions
• Drug and alcohol testing following a workplace injury or illness where there is no suspected connection between the work-related incident and drug or alcohol use

Drug and Alcohol Testing as a Form of Retaliation?

The new OSHA regulations make clear that employers are not prohibited from requiring post-incident drug and alcohol tests in all instances.  Employers, however, should take caution not to overreach because some instances of drug and alcohol testing could be viewed as retaliatory. Specifically, employers are prohibited from requiring post-accident drug and alcohol tests when there is no reasonable basis for an employer to suspect that drugs or alcohol played a role in the accident.

The Link Between Minnesota Law and the New OSHA Regulations

Minnesota does not prohibit employers from conducting drug or alcohol testing after an employee is involved in a work-related injury or accident. In fact, injuries and accidents are among the circumstances in which testing is allowed. However, under the new OSHA rules, OSHA’s inclusion of drug and alcohol testing as a potentially prohibited act means that an employer can no longer automatically mandate a drug and alcohol test after every work-related accident.

OSHA’s inclusion of drug and alcohol testing in its list of retaliatory employer actions is likely to result in increased scrutiny applied to such testing. While Minnesota law has expressly allowed for drug and alcohol testing in the event of a work-related accident, OSHA has now specifically identified drug and alcohol testing as possibly retaliatory. In light of this new OSHA rule, it is recommended that Minnesota employers review their practices with regard to drug and alcohol testing after an accident.