Background: Missouri workers’ compensation law has had penalties for
drug-free workplace policy violations for decades. But In 2005 the landscape
changed when the penalty for a drug-free workplace violation was increased to a
50% reduction in benefits where the injured employee failed the drug test, up
to a complete loss of benefits where the employee refused to cooperate in post-injury
drug testing or where it was shown that the drug use was the proximate cause of
the injury. Implicit in the 2005 amendments was the belief that the threat of
the partial or complete loss of benefits increases employee compliance with
drug-free workplace policies and thereby reduces workplace injuries. OSHA, apparently,
has a far different take on the fairness and effectiveness of post-injury drug
OSHA’s New Rule: On May 16, 2016 OSHA published their final rule relating to
the electronic reporting of work-related injuries. The rule will become
effective on August 10, 2016. Among the rule’s many provisions are some which will
have a direct impact on post-injury drug testing. First, employers must create
reasonable procedures to motivate employees to report injuries promptly. Next,
employers are prohibited from establishing or maintaining procedures which
deter or discourage the reporting of injuries. In addition, employers may not
retaliate against employees who do report injuries, and potential retaliation
is one of OSHA’s primary concerns.
In OSHA’s view, broadly applied post-injury drug testing can
be seen as an invasion of privacy in circumstances where it is unlikely that
drug use could have contributed to the injury, and also impermissibly discourages
injury reporting without sufficient justification. OSHA also disfavors drug
testing where the testing method is not tailored to gauge impairment but is only
capable of detecting drug use that could well have taken place at a time remote
from the occurrence of the injury. The problem with typical drug-free workplace
procedures then is that they often involve drug testing after every injury even
where drug use could not have been a causative factor, e.g., such as where the
injury was the result of a mechanical defect, an act of nature, the negligence
of a co-employee or even a safety violation on the part of the employer.
Also, the reality of drug testing, even where the test
procedures are more extensive and sensitive than is usually the case, is that (with
the possible exception of alcohol) a positive test result often cannot
accurately date the drug usage or measure the effect of the drug usage on the
employee’s performance, that is, reflect the fact of, much less the extent of, the
employee’s “impairment” at the time of the injury.
In Missouri, the new OSHA rule creates a particularly
troublesome conundrum since under Sections 287.120.6, (1), (2) or (3), RSMo.,
an employee’s refusal to submit to post-injury drug testing can result in a
forfeiture of all WC benefits, and a positive result where testing is performed
can compel a 50% reduction in all benefits, or forfeiture of all benefits where
the drug use was proven to have been the proximate cause of the injury. Moreover,
the only appellate case which addressed causation under 287.120.6 adopted a
broad interpretation of the statutory phrase “injury in conjunction with” (the
use of alcohol or non-prescribed controlled drugs) so as not to require the
proof of a causal connection at all, just proof that the drug was present at
the same place and time as the injury.
It seems then that Missouri law runs contrary to the intent
of OSHA that post-injury drug testing be tailored to the specifics of each
injury and only be used where the employer has a reasonable suspicion that the
injury involved drug use, or at least a reasonable belief that the employee
contributed to the injury. OSHA also only wants drug testing done that is
capable of measuring the extent of the suspect employee’s impairment.
Thus, employers may now be challenged by OSHA to justify
their post-injury drug testing procedures and if the procedures fail to pass
muster, penalties can be assessed of between $7,000 and $70,000 per violation
(penalties which will also increase dramatically in August 2016). Should an
employer risk such penalties in favor of maintaining a more extensive
post-injury drug testing program to possibly receive the maximum benefit of the
WC drug use penalties? The answer to this question won’t be known until OSHA’s future
enforcement efforts in the field can be evaluated.
How to Respond: One possible response would be for an employer to use, or increase,
random drug testing as an injury deterrent in place of post-injury drug testing
- but that would be to abandon the penalties provided under 297.120.6, a
statute which requires the existence of a drug- free workplace rule or policy
and which contemplates drug testing contemporaneously with an injury (and after
all, how often would a random test and an injury coincide?).
It seems clear though that every employer which has a
post-injury drug testing rule or policy should review that rule or policy and
then at least consider abandoning across-the-board post-injury drug testing in
favor of injury specific drug testing. Employers should also evaluate the drug testing
protocols which are being used for accuracy and sensitivity. Regardless though, it still appears that
OSHA’s view of the proper use of post-injury drug testing, and the Missouri
General Assembly’s clear intent in adopting the most recent amendments to Sec.
287.120.6, are at odds.
Note: Employers are safe though if the post-injury drug testing is mandated by
federal or state law, such as testing required by DOT regulations, since such
testing cannot be labeled as retaliatory.
Please address any questions or comments to: James Kennedy,
Copyright: Evans & Dixon, LLC 2016