July 2016
James B. Sherman, Esq.
Buried in the new recordkeeping rule from the Occupational Safety and Health Administration (OSHA), are provisions likely to affect many if not most employers who do drug and alcohol testing of employees in Minnesota. State law, specifically the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), prohibits any testing in the absence of a written policy distributed to employees in advance of any attempt to test. As a result Minnesota employers doing drug or alcohol testing have (or by law should have) in place a detailed written policy that is compliant with the DATWA’s very stringent requirements. Among other things, policies must specify how and under what circumstances testing may occur; e.g. pre-hire, reasonable suspicion, and limited use of random testing. Unfortunately, the OSHA’s soon-to-be-implemented recordkeeping rule contains provisions that are forcing employers to reevaluate and revise their written policies to comply with certain new requirements. With the new rule set to take affect August 10, 2016, employers that have not already done so have little time to address these new requirements.
Employers familiar with DATWA know that it is one of the
most restrictive Drug and Alcohol testing statues in the country. Random
testing is restricted to “safety-sensitive” positions and while “reasonable
suspicion” testing is allowed, employers must comply with very particular
procedures which must be detailed in their written policies. When the OSHA
first issued its new reporting rule, the focus in the public was primarily
concerned with its provisions regarding on-line reporting of workplace
injuries. However, provisions ostensibly designed to address employer policies
that might deter employees from reporting workplace injuries, may require many
if not most Minnesota employers to revise their current Drug and Alcohol
testing.
Provisions in the OSHA’s new rule that are likely to
impacting testing include the following requirements:
1.
Employers must establish “reasonable
procedure[s]” for employees to report work-related illnesses or injuries.
2.
Employers must affirmatively advise employees
that they cannot be retaliated against for making a report.
3.
Reporting procedures may not deter nor
discourage employees from reasonably reporting work-related injuries or
illnesses.
Buried in comments accompanying the OSHA’s new reporting
rule are statements that post-injury/accident Drug and Alcohol testing may
deter employees from reporting them. The OSHA has advised that in order to
comply with its new reporting rule, as of August 10th any
post-accident or injury testing must:
a.
Be limited to instances where employee drug or
alcohol use likely contributed to the incident; and
b.
Test only for impairment at the time of the
incident (versus using testing methods that identify drug use only generally).
Because many Minnesota employers have in place written Drug
and Alcohol policies required by MDATWA, with many if not most of those
policies providing for post-accident or injury testing in all instances,
revisions should be made prior to August 10, 2016 when the new OSHA reporting
rule goes into effect. Rather than completely overhauling such policies, an
addendum or “rider” may suffice; the important thing is to issue any changes to
employees, in writing, consistent with the mandates of MDATWA for Minnesota
employers.
Employers should consult with experience counsel, without
delay, to adopt any compliant measures necessitated by the new rule.
Questions? Comments? Contact Attorney James B. Sherman at jasherman@wesselssherman.com or by phone at 952-746-1700 for more information, or if you have any questions about Drug and Alcohol testing or OSHA policies.
