In a client alert published on October 6, 2016, OSHA's new anti-retaliation and anti-discrimination rules were discussed, particularly as they relate to drug and alcohol testing in the workplace. Click here to see the October 6, 2016 client alert. On October 19, 2016, OSHA issued another memorandum concerning these new rules and offered Regional Administrators guidance on how to interpret the new rules. Click here to see the October 19, 2016 OSHA memorandum. OSHA clarifies several points in this most recent memo unrelated to post-incident drug and alcohol testing as well as its interpretation of those rules as it relates to post-incident drug and alcohol testing.

Included among the points not related to drug and alcohol testing were points related to the process injured and ill employees are to use to report their injury and illness. Whereas OSHA's position appeared to require employers to impose no time limit on employees reporting work-related injuries or illnesses, this interpretation indicates it is reasonable to require reporting the same or next day. It is unreasonable to require that an employee report an injury or illness when they are incapacitated. Further, with regard to the procedure for reporting the injury or illness, OSHA clarifies that while it is reasonable to require that an employee report an injury or illness to the employee's supervisor, it is not reasonable to do so if the employee is incapacitated. Additionally, it is not reasonable for an employer to require a cumbersome reporting process.

On the issue of disciplining employees for violating safety rules after reporting an injury or illness, OSHA clarifies that the practice is acceptable so long as the employer does not only discipline employees for violating safety rules after reporting injuries and illnesses. Evidence related to a violation of this prohibition includes employer disciplinary records and employer statements.

Another topic addressed in this memo is safety incentive programs. In short, this interpretation clarifies that such safety incentive programs are acceptable, but that an employee cannot be denied participation in the program, have his or her participation in the program adversely impacted, or otherwise be penalized because he or she reported an injury or illness. Arguably, an employer could penalize the employee for an injury or illness that was the result of a violation of a workplace safety rule, but enforcement of that particular rule would need to be uniform.

With respect to the application of these new rules to drug and alcohol testing, OSHA offers some insight into practices it believes are compliant. According to this new interpretation, the central inquiry related to an employer's use of drug and alcohol testing will be whether the employer had a reasonable basis to believe drug or alcohol use by the injured or ill employee could have contributed to the injury or illness. OSHA offers an example of where drug or alcohol testing would be of no value: a repetitive stress injury.

In evaluating the reasonableness of the employer's drug and alcohol testing, OSHA will look at:

1. Whether the test would offer any insight into why the injury or illness occurred;

2. Whether other employees involved in the incident leading to injury or illness were tested; and

3. Whether the employer has a heightened interest in determining whether drug or alcohol use could have caused or contributed to causing the injury or illness due to the hazardousness of the work.

After offering relatively clear benchmarks for employer compliance, OSHA muddies the waters by including the following verbiage:

OSHA will only consider whether the drug test is capable of measuring impairment at the time injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. The general principle here is 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 as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

The interpretation of these rules and their application will likely change over time as employers continue to challenge them.