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OSHA recently issued a proclamation against the blanket drug testing of all employees that report work accidents. While there is no specific law against it, OSHA has advised that it will consider such practice retaliatory in nature because it could discourage an employee from reporting a legitimate accident or injury.
In Alabama, the Workers’ Compensation Code provides the employer with an affirmative impairment defense to indemnity benefits under Section 25-5-51. A positive DOT compliant drug test results in an irrebuttable presumption of impairment. Even with this presumption in place, the employer still has the burden of proving that impairment caused or contributed to the accident. Per OSHA, employers are now called upon to determine whether there is any reasonable connection between drugs and/or alcohol and the accident/injury prior to administering the test. If drug or alcohol impairment could have been a contributor to the accident, then requiring the test will not be considered discriminatory. If there is no reasonable connection, then employers risk a retaliation claim by OSHA in federal court.
If an employer opts in to the Drug Free Workplace Program offered by the Alabama Department of Labor, then it will likely work as a defense to any claim of retaliation when all employees with reported claims are tested.
OSHA will begin its enforcement of this new policy on December 1, 2016. After that, employers who have not opted in to the Drug Free Workplace Program should plan on changing post-accident drug testing policies from “shall be tested” to “may be tested” and consider the relationship between any possible impairment and the accident/injury prior to testing.
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.