b'Continued from page 45 Garys CornerupdateMarch 12, 2012, memo, OSHA staff membershave reason to suspect the influence of drugs seem to demonstrate a lack of awareness thatif an employee who has been trained, tested, employers have legitimate interests in the timelyand observed to be in compliance with a rule reporting of alleged work-related injuries. Onemandating the wearing of personal protective of these interests is in accident investigation,equipment was not wearing the issued PPE and another centers on drug testing. Frequentlywhen an injury occurred. In that situation an the results of a post-injury or post-accidentemployer may justifiably require a drug test.drug test may be challenged because theThis requirement saddles the employer urine or blood sample was not secured in awith another subjective determination, which timely fashion. In some states the workers compensation systems promoting drug-free workplaces require an aggressive post-accidentIn that situation an or post-injury testing program. If the employeremployer may justifiably is not able to enforce work rules related to timely reporting, these drug-free workplacerequire a drug test.programs may become ineffective. One has to question OSHAs motivation in these situations. Is the interest in encouraging employees to report work-related injuries or in providingcould lead to another claim of discrimination. them an out to avoid the employers drug- One way around this problem will be for the testing program because they know or suspectemployer to prepare a list of actions that will they would test positive if they reported theconstitute reasonable cause for ordering a drug injury immediately? test. With such a list, however, the employer The new anti-retaliation language includesmay be limited to ordering a post-accident drug some new information on post-accident drugtest for the listed reasons only.testing. Many NFBA members have drug-freeThe March 12, 2012, memo also indicated workplace programs that require mandatorythat OSHA would consider safety incentive post-accident drug testing. In its commentaryprograms in decisions concerning work-related on the new standard OSHA has indicated thatinjuries and illnesses. According to the memo, such testing will be considered discriminatoryany incentive program that was dependent upon conduct under the new anti-retaliation languagenot reporting work-related injuries or illnesses in the electronic recordkeeping rule, whichwould be considered by OSHA to be a violation takes effect August 10, 2016. OSHA is takingof Section 11(c) of the act. By its action in the the position that such a rule at the very leastU.S. Steel case, it is apparent that OSHA is discourages an employee from reportingpursuing remedies against employers when it a workplace injury because he or she mayperceives that employees rights to freely report consider the mandatory drug test to be anwork-related injuries and illnesses without invasion of privacy. OSHA finds no problemfear of retaliation are threatened by policies or with for-cause testing after a workplace accidentprograms of the employer. as long as it is performed in a non-retaliatoryI am sure that this topic will merit fashion.An example would be something likesubstantial commentary and discussion in the a bee sting. The incident may occur in thefuture.workplace and, if reported, would result in a drug test under a mandatory testing program. But the bee sting would have nothing to do withTake advantage of a great MRCA member benefit-whether the person was under the influencecomplimentary legal advice on OSHA-related of drugs, so there is no reason to do a drugissues from MRCA Legal Counsel Gary Auman. test. On the other hand, an employer mayContact Gary at GWA@dmfdayton.com.46 www.mrca.orgMidwest Roofer'