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 testing.

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.

Copyright: Evans & Dixon, LLC 2016