Letters from the Workers’ Compensation Trenches

I am just back from an invigorating seminar put on by the national group to which we belong as the sole Maine member, the National Workers’ Compensation Defense Network and want to share some highlights. This year’s seminar, held in Chicago on September 22, included presentations on lots of relevant topics, but a few really inspired me.

The seminar kicked off with a panel including risk managers from retail, healthcare, trucking and manufacturing discussing various innovative ways to “Make our Work Comp Program Great Again!” The panel discussed claims costs management tactics including creative medical management systems, initiating early investigations and setting workable and real metrics to measure progress in claims management. Next, we learned all about traumatic brain injuries, including the medical science behind legitimate claims and signs of illegitimate claims. A session on reducing narcotic use featuring a risk representative from a large national retail chain was also very well-received and timely. But one of the most informative session, in my humble opinion, was presented as an “ad-on” by my colleague from Washington State, attorney George Goodman and it is this session that I’d like to bring to our reader’s attention.

George shared some insider tips on the new OSHA recordkeeping rule, including the prohibition on blanket post-accident drug testing that is set to take effect on November 1 of this year. Although OSHA does not refer to drug testing within the body of the rule, OSHA’s comments make clear its position that drug testing 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. OSHA’s rationale is that they believe that evidence has shown that blanket post-injury drug testing policies deter proper and prompt reporting of occupational injuries. It isn’t entirely clear what evidence OSHA is referring to, although it is less likely that an employee who shows up at work impaired and then injures himself is going to pop his head into his supervisor’s office to let the supervisor know of the injury, as obviously the drug-induced impairment may well become readily apparent with or without a post-accident drug test.

OSHA’s position is that there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness, in order for the employer to require drug testing. Drug testing that is designed in a way that may be perceived as punitive, or embarrassing to the employee is likely to deter reporting of injuries. For example, if an employer has a blanket post-accident drug testing policy and an employee reports a repetitive strain injury, such a blanket policy could subject the injured worker to embarrassment, and so perhaps cause the worker not to promptly report symptoms of the repetitive strain injury. It is, however, extremely important to note that the Rule specifies that an employer who conducts drug testing to comply with the requirements of a state or federal law or regulation is presumed not to do so in a retaliatory manner, and the final rule does not prohibit such testing. OSHA’s comments specifically note: “The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. 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 this rule would not prohibit such testing.”

Additionally, Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws, so if your law has a provision allowing blanket post-accident drug testing, that would continue to be permissible notwithstanding the new regulation. Further, according to the Associate General Counsel’s recent announcement, OSHA has agreed that if an employer has a drug-free workplace policy, union negotiated program, or equivalent through a consortium, no changes to enforcement/application of that policy are needed.

What does this mean practically for an employer? An employer without a state or federally required drug testing policy should:

• test when there is reasonable belief that impairment may have contributed to the accident
• test pursuant to any state or federal law, or internal zero-tolerance policy mandating testing
• test pursuant to any state workers’ compensation law that might supersede the OSHA prohibition.
• Or, consult counsel to determine the best course of action for your workplace.

If you have questions about your company post-accident drug testing policies and how the new OSHA regulation might impact your workplace, please contact a member of the Verrill Dana Labor & Employment Group for counsel and advice.