Employer Groups Balk At OSHA Drug-Test Limits After Accidents

In a lawsuit filed in the Northern District of Texas, several employer groups have sued OSHA over the drug policy they say is embedded in OSHA’s recently released “Final Rule to Improve Tracking of Workplace Injuries and Illnesses.” Commenting on the lawsuit for an article in Legal Newsline, attorney Patrick Tyson, partner with Constangy Brooks, Smith & Prophete LLP and former assistant secretary at Department of Labor, explained that OSHA is concerned that employers don’t fully report workplace injuries and assumes that employees who are involved in minor accidents may be less likely to report the incident if they know they will need to take a drug test. The plaintiffs, who include Associated Builders and Contractors Inc., the National Association of Manufacturers and the Great American Insurance Company, maintain there is no evidence injuries aren’t being reported and that OSHA “has lost sight of the importance of reducing the number and severity of injuries themselves.” OSHA may have telegraphed its line of defense in an FAQ document about the new rule on its website. There it maintains that it does not prohibit drug testing of employees, but 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,” and that if the testing is done to comply with legal requirements it would not be prohibited.