08/21/2017

THE EMPLOYEE DRUG TESTING DILEMMA

Written by: Bob Dunlevey of Taft Law

Two recent developments have caused even more confusion for employers concerning their legal rights to exclude job applicants based upon positive pre-hire drug screens and to require automatic post-accident drug testing for current employees.  This is because OSHA’s revised accident reporting and recording rules issued last year attempting to restrict automatic post-accident testing are on hold and because the Massachusetts Supreme Court has just ruled that a job applicant testing positive cannot be rejected for hire just because he or she uses marijuana for a medical condition.  Massachusetts believes the employer needs to engage in an Americans with Disabilities Act type “interactive process” to see if the employee’s marijuana use can be accommodated.  Massachusetts employers now must show that the marijuana use is an undue hardship to the business or a safety threat. Wow!  How is an employer expected to maintain a safe workplace with these apparent legal restrictions and the widespread abuse of illicit drugs?  Here are the answers to the dilemma:

• Marijuana is still a Schedule I federally controlled narcotic and the majority view is that an employer has the right to pre-hire drug screen and reject applicants testing positive for marijuana and other illicit drugs. The Massachusetts case is only controlling in Massachusetts.  But, in those states having liberal marijuana laws which contain related anti-discrimination or reasonable accommodation provisions, exclusion on the sole basis of a positive pre-hire test could eventually be considered unlawful.  Anticipate more anti-employer decisions similar to the one in Massachusetts.
  
  
• Automatic post-accident drug testing is where all employees involved in an accident are tested – or at least those believed to have caused or contributed to it. OSHA’s accident reporting and recording rules contain additional gratuitous commentary stating, among other things, that post-accident testing should be limited to situations in which the drug use is likely to have caused or contributed to the accident – not automatic.  But, the actual language of the rules do not prohibit mandatory post-accident drug testing.  OSHA thinks employees do not report accidents and injuries in an effort to avoid drug testing.  These OSHA rules are being challenged in federal court actions currently. 
  
  
• More significantly, while these rules entitled “Improve Tracking of Workplace Injuries and Illnesses” established an initial deadline of July 1, 2017 as the date by which certain employers were required to submit OSHA Form 300-A information electronically, OSHA in late June placed the requirement on hold and extended the initial electronic reporting deadline to December 1, 2017. OSHA’s announced purpose is to provide the Trump Administration time to “review” the new requirements.  Most importantly, OSHA stated that it “intends to issue a separate proposal to reconsider, reverse, or remove other provisions of the prior Final Rule.”  What?  Is OSHA backtracking? In light of the new administration’s anti-regulatory posture, does this mean that OSHA’s gratuitous comments in the Final Rule severely limiting post-accident drug testing will be withdrawn?  I predict such because employers are much concerned about drugs in the workplace.  Almost eight out of 10 users of illicit drugs are currently employed.  In the last month alone, 9.7 million Americans have used marijuana and 1.9 million have used cocaine.  President Trump, in August, even declared the Opioid epidemic to be a “national emergency.” 
  
  
• In light of these developments, many employers have elected to continue their automatic drug testing policy. It is likely that such a policy will not be found by the courts to be in violation of the law.  But, for those employers wishing to be more cautious, post-accident testing based upon “reasonable suspicion” that substance abuse contributed to the accident is the best approach.  For example, if the employee is injured by a falling object, consider not testing the injured employee but instead the employee who caused the object to fall. 
  
  
• Remember, OSHA’s commentary does not affect new hire, reasonable suspicion and random testing. But, be sure to administer these types of testing and your substance abuse program in a uniform and non-discriminatory manner.
  
  
• Because OSHA’s commentary states that post-accident screens mandated by state workers’ compensation law are not prohibited, this further justifies automatic post-accident testing if the test is performed for workers’ comp benefit disqualification purposes or to obtain a drug-free workplace premium discount. But, workers’ comp laws customarily do not specifically require mandatory post-accident testing or enrollment in a DFW program.  In any event, the majority view is that the voluntary enrollment in a DFW program which mandates automatic testing is sufficient to come within the OSHA exception to its commentary and most employers are continuing post-accident testing in connection with their workers’ comp programs.  
• Federal government contractors subject to the Drug Free Workplace Act and employers with DOT obligations should continue to follow the law without regard to OSHA’s rules and state marijuana laws. Remember, DOT medical Review Officers will not verify a drug test as “negative” based upon the employee having been prescribed medical marijuana.  But, non-DOT scenarios present a predicament.

For more information regarding drug-free workplace programs and the enforcement of them, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, now at Taft Law (937) 641-1743.  Also, for a reasonable suspicion checklist, send email to rdunlevey@taftlaw.com.