Last year, Part 11, Recording and Reporting of Occupational Injuries and Illnesses, of the MIOSHA rules were amended to include expanded anti-retaliation protections for employees who report occupational injuries and illnesses. This change in Part 11 was an adoption of a change in the corresponding OSHA rule.
The impetus for the rule change was a concern about the effect of post-accident drug testing on employee reporting of injuries and illnesses; also of concern were the use of discipline and incentive programs. At the federal level, the enforcement policy on this topic is currently under review.
The new MIOSHA/OSHA rule, Rule 1135(2)(d) of Part 11, is not a blanket prohibition against post-accident drug testing. Whether or not the post-accident or post-injury drug testing represents discrimination is highly dependent on the circumstances, and in the OSHA policy memo on the subject, the situations that would be considered discrimination are narrow.
The OSHA memo includes the following statement: "When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness."
Rule 1135(2)(d) reads as follows:
"You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness."
Rule 1136 of Part 11 is informational only. Any cases related to Rule 1136 are to be handled by the Employee Discrimination Section using section 65 of the MIOSH Act.
Rule 1136 reads as follows:
"In addition to R 408.22135, section 65 of the act prohibits you from discriminating against an employee for reporting a work-related fatality, injury or illness. Section 65 of the act also protects the employee who files a safety and health complaint, asks for access to the records under this part, or otherwise exercises any rights afforded by the act."
Based upon the above information, employers should not adopt a policy of automatic post-accident drug testing. A determination whether to conduct a drug test should be based upon the circumstances regarding the particular work-related injury or illness.
This article is intended to provide a general overview of the issue of MIOSHA/OSHA regulations and drug testing. Please contact MALA if you need additional information on this issue.
Note: MALA is pleased to be an alliance partner with MIOSHA. Future MALA publications will include additional information pertaining to compliance with MIOSHA requirements.
In addition, the MIOSHA website provides numerous resources. The website address is http://www.michigan.gov/LARA and click on MI Occupational Safety and Health Administration.
MALA Expands Insurance Options and Resources
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