b'SAFETY CULTURE AND THE ENTREPRENEUR OSHA UPDATEstill require post-accident drug testing following property damagefree workplace program (DFWP), with a promise of lower workers accidents as well as for other identified reasons, not related to injurycomp premiums for those who participate, the area director will reporting.consider that program to provide a reasonable non-retaliatory reason The same memorandum referred to above states that: sectionfor mandating post-accident drug tests, even if the state law only 1904.35(b) (1) (iv) only prohibits drug testing employees forrequires the employers DFWP to provide for reasonable suspicion reporting work-related injuries or illnesses without an objectivelytesting. reasonable basis for doing so. As in all cases under sectionSo, where does this leave the employer? It appears that 1904.35(b) (1) (iv), OSHA will need to establish the three elementsemployers have several options. The first option, and the most of retaliation to prove a violation: a protected report of an injury orlikely not to result in a citation will be to stop requiring mandatory illness; adverse action; and causation.In the next paragraph OSHApost-accident drug testing, unless such testing is specifically required advises that in evaluating whether an employer had a reasonableby a state or federal law. Of course, if you take this option you may basis for drug testing following the report of a work-related injury orinstitute a reasonable suspicion testing program. illness, OSHA will look to whether the employer had a reasonableA second option would be to be sure that any mandatory basis for believing that he drug used by the employee who reporteddrug-testing program extends to all employees involved in any the injury could have contributed to the injury or illness.mishap while working, whether or not an injury occurs. This Unfortunately, as OSHA attempts to further clarify theirwould be similar to the OSHA example with the crane.So, any rationale they seem to create more confusion. An example isemployee involved in any mishap would have to submit to a drug provided by OSHA of several employees who are injured in aand/or alcohol test. If you take this approach you should not make crane accident in which the crane operator is not injured. OSHAany exceptions, especially as to employees in a non-injury causing advises that in this instance it would be reasonable to require allmishap. This option, if properly crafted and implemented should employees whose conduct could have contributed to the incidentpermit you to continue with mandatory post-accident drug testing and/or injuries to be tested, whether or not they reported an injury.with little or no risk of drawing a citation.However, OSHA points out that it would not be reasonable to drugA third option is to contact your local federal OSHA area test only those employees who reported an injury and not test otherdirector or the head of your state OSHA to see what his/her uninjured employees who conduct could also have contributedapproach will be. to the incident. OSHA uses this to underscore the main principle that drug testing may not be used as a form o9f discipline againstFinally, you can conduct business as usual hoping that no employees who report an injury or illness. employee or employee representative complains about your OSHA follows this illustration with: drug testing an employeemandatory post-accident drug testing program. I know there will be whose injury could not possibly have been caused by drug usea group of companies who chose to take this approach, at least until would likely violate section 1904.35(b) (1) (iv). Of course, thisthe new administration takes office and establishes its own priorities. last statement would require you to separate those injuries reportedThere are inherent risks associated with this last option. because of an accidental occurrence from those occasioned byHere we have a new broad rule that impacts all employers, happenstance. I suggest that a blanket post-accident drug testingwhether or not they ever considered their post-accident testing policy following any accidental occurrence with or without an injuryprotocol to anything more than part of their accident investigation/is the best way to reduce the chance of a problem. prevention processan assist in determining the cause of an The example in the preceding paragraph is fairly easy toon-the- job accident. That tool has been significantly impacted and understand. Unfortunately most on the job injuries involve only oneALL employers need to take a look at their current post accident employee, whose actions or inactions cause the injury or illness toprocedures to ENSURE that they do not fall into the category of that same employee. So when viewed in its totality, it appears thatretaliatory conduct designed to inhibit or discourage employees from the memorandum released by OSHA on October 19, 2016 reaffirmsreporting on the job injuries and/or illnesses.the prohibition against mandatory post-accident drug testing. SomeTake advantage of a great MRCA member benefit-complimentary OSHA area offices for some reason have placed their own spin onlegal advice on OSHA-related issues from MRCA Legal Counsel this language. Some are stating that if state law provides for a drugGary Auman. Contact Gary at GWA@dmfdayton.com.www.mrca.orgMidwest Roofer 7'