commercial truck drivers

By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

By Frederick T. Smith, Jennifer L. Mora, and Christopher W. Kelleher

Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.

The Department of Transportation (DOT) has published its long-awaited final rule amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (HHS) revised “Mandatory Guidelines for Federal Workplace Drug Testing Programs” which became effective on October 1, 2017.

The new DOT rule makes the following significant changes:

  • Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is “intended to help address the nation-wide epidemic of opioid abuse” and create safer conditions for transportation industries and the public;
  • Adding methylenedioxyamphetamine (MDA) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (MDEA) and methylenedioxymethamphetamine (“MDMA”), and such testing potentially acts as a deterrent;
  • Removing testing for MDEA from the existing drug testing panel;
  • Removing the requirement for employers and consortium/third party administrators (C/TPAs) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and
  • Adding three “fatal flaws” to the list of when a laboratory would reject a specimen and modifying the “shy bladder” process so that the collector will discard certain questionable specimens.

The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines.

If you have questions about the new regulations or employee drug testing in general, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment or Workplace Policies and Handbooks Teams.

By Brent I. ClarkErin Dougherty Foley, and Craig B. Simonsen

By Proclamation, President Obama has declared December 2015, to be “National Impaired Driving Prevention Month.” 80 Fed. Reg. 75781 (December 3, 2015).

The President declares that “no person should suffer the tragedy of losing someone as a result of drunk, drugged, or distracted driving….” He notes that drunk drivers kill more than 10,000 people annually, and “about one-third of traffic deaths in the United States involve a driver with a blood alcohol concentration above the legal limit.” Additionally, “driving under the influence of drugs, an increasingly common occurrence, carries the same risks as drunk driving and is just as avoidable.” Driving distracted, including while using a cell phone, can lead to tragic outcomes that are also preventable. The Proclamation provides links to federal materials and resources, including www.Distraction.gov, www.NHTSA.gov/DriveSober, and www.WhiteHouse.gov/ONDCP/DruggedDriving.

There are real issues for employers related to impaired and distracted driving. For instance, we had previously blogged about a United States Court of Appeals for the Eleventh Circuit case that addressed the issue of an employer’s liability for terminating a commercial truck driver who suffered from alcoholism, a condition that is often considered a disability under the Americans with Disabilities Act (ADA).  The focus of the Court’s analysis was on the relevant Department of Transportation (DOT) regulations which provided that a person with a “current clinical diagnosis of alcoholism” was not qualified to drive a commercial motor vehicle.  The regulations did not, however, instruct who would make the final determination of whether an employee had a current diagnosis of alcoholism—the employer or the DOT (or other) medical provider. In this case, following the plaintiff-employee’s leave of absence to receive treatment for alcoholism, he obtained clearance by a DOT medical examiner that he was fit to return to work.  However, the defendant-employer received contrary guidance from the plaintiff’s alcohol treatment counselor, who diagnosed him with “alcohol dependence or alcoholism.”

In another example, we previously blogged about employees using cellphones and other devices while driving. There we noted that the trend of banning all cellphones or other portable devices while driving even where permitted by local law was based on a number of factors. First, there have been a large number of  reported jury verdicts or settlements where companies have been found liable for accidents caused by their employees while driving and using their cellphones. There was also a growing effort by the federal and state governments advocating that no one should use a cellphone or other portable communication device while driving. Consider that the National Transportation Safety Board (NTSB) recommended in December of 2011 that all states and the District of Columbia ban any cellphone use behind the wheel, becoming the first federal agency to call for an outright prohibition on telephone conversations while driving. Notably, NTSB findings and other research has shown that drivers using even hands-free cellphones aren’t much safer than using hands-on cellphones because just talking on the phone reduces the brain power focused on driving by 37 percent.

Employers are urged, at this time of year especially, when company parties and events are common-place, to review corporate policies to ensure that it has minimized its risks from drunk, drugged, or distracted driving. As noted in a recent Law360 Analysis, “How To Hold A Holiday Party Without Inviting Legal Hassles,” “the potential legal exposure doesn’t have to shut down the party entirely.” The authors provide these steps, summarized here, to keep the party going while mitigating the risks:

  • Make and Enforce Clear Social Gathering Policies;
  • Temper Alcohol Consumption;
  • Remind Leaders to be Leaders;
  • Make Sure Employees Get Home Safely;
  • Keep the Party Universal; and
  • Make it Voluntary

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Environmental, Safety & Toxic Torts Group or the Workplace Counseling & Solutions Team.