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TOKING ON THE FACTORY FLOOR: Do OSHA's New Anti-Retaliation Rule and Ohio's Medical Marijuana Law Mean That Employees Can Come to Work High?

in Employment, Employment, News

The short answer is no.  But now that I have your attention . . .

At Weston Hurd, we have been receiving many questions from employers about the Occupational Safety & Health Administration’s (OSHA) new anti-retaliation rule and Ohio’s new medical marijuana law.  The majority of the questions are about the impact of these new rules on Ohio employers’ drug testing of employees.   Below is a summary of the changes in the law and guidance on how to revise your policies to comply with the new requirements.

OSHA’s New Anti-Retaliation Rule:

In May 2016, OSHA published a new rule that strengthened protections against employer retaliation for employees who report injuries.  Under the new rule, employers are required to:

  1. Notify employees that they have the right to report workplace injuries;
  2. Inform employees that employers are prohibited from discharging or discriminating against employees for reporting workplace injuries; and,
  3. Adopt procedures for reporting injuries that are reasonable and would not deter or discourage a reasonable employee from accurately reporting a workplace injury.

The first two parts of the rule are relatively straightforward but may require slight revisions to existing employer policies.  It is common for employer handbooks to include a provision requiring employees to report injuries.  However, some provisions do not expressly state that an employee has the right to report an injury.  Similarly, although many employer handbooks contain a general policy against retaliation, anti-retaliation language may not be included in the policy addressing the reporting of workplace injuries.  If your current policy does not include such language, you should revise it so that it clearly states that employees have the right to report injuries and that you will not retaliate against them for doing so.

The third part of the rule is a little trickier. OSHA’s interpretation of what policies “deter or discourage” employees from reporting injuries may surprise you.

First, OSHA has taken the position that an employer policy that disciplines an employee for failing to immediately report an injury violates the new rule because such a policy might discourage an employee from reporting an injury that has developed over time (for example, a shoulder injury that has arisen over time because of repetitive motion).  For this reason, OSHA has stated that a reasonable rule must allow for the reporting of workplace injuries “within a reasonable time” after an employee has realized that he or she has suffered a work-related injury or illness.

Second, OSHA has taken the position that safety incentive programs that reward employees for low accident rates or “no injuries” violate the anti-retaliation rule because such programs may subject an employee who reports an injury to adverse action (by denying the employee or a group of employees a benefit).  In OSHA’s view, these policies, rather than incentivizing a safer workplace, incentivize employees to not report injuries.  Thus, while it is permissible to reward employees for completing safety training or suggesting ways to improve workplace safety, it is no longer permissible to reward employees for being accident or injury free.

Third, in its written guidance interpreting the new anti-retaliation rule, OSHA has stated that mandatory automatic post-injury drug testing deters and discourages employees from reporting workplace injuries.  OSHA has taken the position that drug testing policies must limit post-accident testing to situations in which there is “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury.”  In addition, OSHA has also stated that the drug test administered must “accurately identify impairment caused by drug use.”  This requirement is particularly troubling, and unrealistic, because current drug testing is designed to test for the presence of unlawful drugs, not an employee’s level of impairment.  The good news is that OSHA has stated an employer does not violate the anti-retaliation rule if it conducts drug testing to comply with the requirements of state or federal law.  Thus, drug testing mandated by Department of Transportation regulations or by the BWC’s Drug-Free Safety Program (for an employer participating in that program) would not violate the rule.


Ohio’s New Medical Marijuana Statute:

Although Ohio’s new law permitting the use of medical marijuana has received a lot of media attention, the good news for employers is that the law exempts employers from any requirement to permit the use, distribution or possession of medical marijuana by employees.  The law does not prohibit an employer from establishing or enforcing a drug-free workplace policy or from terminating an employee who tests positive for marijuana or possesses it in the workplace (even if that employee is licensed to use or possess medical marijuana).  Moreover, an employee who is discharged because of his use of medical marijuana will be considered to have been discharged for just cause and thus will not be entitled to unemployment benefits.  Finally, if an employee tests positive for marijuana after a workplace injury, employers will still be entitled to the “rebuttable presumption” under Ohio’s workers compensation law that the employee’s use of marijuana was the proximate cause of the work-related injury (although, as set forth above, OSHA’s anti-retaliation rule prohibits a blanket post-accident testing policy).


What Should You Do?

OSHA had initially scheduled its anti-retaliation rule to become effective on August 10, 2016.  It quickly delayed its implementation until November 10 and has recently delayed its effective date once again until December 1, 2016.  The delays have occurred because certain employer groups have filed a lawsuit in federal court in Texas seeking to invalidate the rule.

While there is a possibility that some of the more controversial parts of the rule may be ruled invalid by the federal court, we think it is safe to assume that the parts of the rule requiring notice of the right to report an injury and informing employees that they will not be retaliated against for reporting an injury will be found valid.  Thus, we recommend that you revise your policies on reporting workplace injuries to state that employees have the right to report injuries and that you will not retaliate against them for doing so.

If you currently have a workplace incentive program that rewards employees based on a low accident rate or “no accidents”, we recommend that you consider alternative incentive programs consistent with OSHA’s guidance (for example, rewarding employees for completing safety training).  That way, you will be prepared in the event that OSHA’s rule prohibiting “low accident” or “no accident” incentive programs survives the court challenge.

If you currently have a drug testing policy that mandates drug-testing after any accident, we recommend that you consider revising the policy to reflect that drug testing will only occur if the accident involved the violation of a work rule or there is otherwise reasonable suspicion that drug use was a factor in the accident.  Such a policy will meet OSHA’s “reasonable possibility” guidance as well as the Bureau of Workers’ Compensation’s Drug-Free Safety Program’s requirements (which do not require a post-accident test if there was no violation of work rules and no reasonable suspicion of drug use).

For now, we recommend that employers continue to utilize the current method of drug testing, which tests “levels” and not impairment, as there is no other method customarily used and Ohio’s workers compensation statute specifically references drug testing by “levels”, as does federal law.  Employers who have employees subject to the Department of Transportation’s (DOT) drug testing requirement should continue to abide by all DOT regulations.  As for the medical marijuana statute, there is no need to take any action at the present time.

As always, if you have any questions, comments or concerns about this Client Alert, please contact your Weston Hurd attorney.