Soon after delaying the effective date of §1904.35 for a second time, this time until December 1, the Occupational Safety and Health Administration posted formal guidance on its website explaining how the Agency interprets the new regulation. These Example Scenarios and an internal memo to the Regional Administrators are consistent with guidance we offered this past summer.

Post-incident drug testing

Testing Outside the Scope of §1904.35(b)(1)(iv)

OSHA has reiterated that post-incident drug testing that is consistent with the terms of a state’s Drug-Free Workplace or workers’ compensation statutes, or federal law (such as U.S. Department of Transportation regulations), will not be affected by §1904.35(b)(1)(iv). Testing will be permissible even in the absence of such a state or federal law if an employer’s private insurance carrier offers discounted rates if the employer implements a post-incident drug testing policy. OSHA has also confirmed that random, pre-employment, and reasonable suspicion testing are not covered by §1904.35(b)(1)(iv).

Testing Within the Scope of §1904.35(b)(1)(iv)

“Reasonable possibility” testing. “Reasonable possibility” means that employee drug use could have contributed to the reported injury. This category is best understood by examples of what OSHA considers to constitute “reasonable possibility.” The only example that OSHA gives in its new guidance is a situation in which there is a crane accident. As OSHA explains, if there is a “reasonable possibility that [the accident] could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition,” then post-incident testing is permissible. We believe that post-incident drug testing is also permitted when the reported injuries involve motor skills, such as slips, trips, and falls; cuts from use of a knife or tool; and injuries resulting from failure to comply with safety requirements such as the failure to lock out or to wear required personal protective equipment.

“No Reasonable Possibility” Testing. Only in a very narrow range of cases does OSHA take the position that no post-incident testing is allowed. OSHA states that cumulative trauma disorders or repetitive strain injuries “could not possibly have been caused by drugs.” And, if an employee is injured as an “innocent bystander,” which means that such employee’s conduct could not have contributed to the injury, then post-incident testing is not allowed.

Safety incentive programs

OSHA says that safety incentive programs that are tied to OSHA recordables or incidence rates are not prohibited, as long as the reward for achieving the numerical safety goal does not deprive a reporting employee of a “substantial award” or a “substantial cash prize.” Unfortunately, OSHA provides little practical guidance about the point at which the award or prize will be considered “substantial” and will therefore deter or discourage an employee from reporting a work-related injury or illness. It appears that OSHA will accept a pizza party or similar nominal award, such as a tee-shirt or cap.

We’ll all be looking for that objectively reasonable person to tell us that he would promptly report an injury if all he’d lose is a slice of cheese pizza but would be deterred from reporting if it would cause him to miss out on a slice with pepperoni.

Timely reporting policies

OSHA also addresses what it terms “rigid prompt reporting requirements.” In an example given by OSHA, an employer would be found to violate §1904.35(b)(1)(iv) if the employee twisted his ankle at work but did not immediately realize that he was injured and waited to report the injury until the next morning when his ankle had become sore and swollen. OSHA explains that there are two problems with taking adverse action against such an employee. First, the employer’s decision to discipline the late-reporting employee failed to account for injuries that “build up over time.” OSHA means that, under these circumstances, the employee did not believe when he twisted his ankle that he had injured himself and that the symptoms did not develop until after he had left work. Therefore, it was reasonable to report the injury the next morning when it was apparent to the employee that he had been injured. Secondly, OSHA finds the adverse action to be a “pretextual disciplinary action,” because although the employer ostensibly issued the discipline for the violation of a work rule, the rule itself was not reasonable and therefore did not constitute a legitimate business reason for taking the adverse action against the employee.

OSHA’s interpretation is problematic. State workers’ compensation statutes typically make available a drug impairment defense for workplace injuries caused by intoxication. As long as an injured employee is drug tested within a few hours of the injury, and there is a valid positive result, employers may have a legal presumption that the accident was caused by intoxication, which constitutes a complete defense to the injury claim. OSHA’s interpretation would deprive employers of the opportunity to assert this defense because the required timeframe for conducting the drug test in order to secure the legal presumption afforded by the State Acts would have passed before an employee was required to report the injury. OSHA’s position appears therefore to be contrary to Section 4(b)(4) of the Occupational Safety and Health Act, which provides, in part, “Nothing in this Act shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries . . ..”

Questions remain

Given the myriad of fact scenarios that will be presented within the scope of §1904.35(b)(1)(iv), it was always going to be difficult for OSHA to give specific guidance to employers. Although it appears that the guidance for post-incident drug testing is sufficient to advise employers how to comply with the new regulation, OSHA’s very general guidance on safety incentive programs and timely reporting requirements will leave employers guessing. At what point does a “nominal” reward become “substantial” and thus in violation of §1904.35(b)(4)(iv)? And, again, we’ll all need to find that objectively reasonable person to help us in deciding whether an employee’s explanation for not reporting an injury or illness in a timely manner was reasonable and hope that the OSHA compliance officer agrees.