Ohio Decision Illustrates Conflict Between OSHA’s New Anti-Retaliation Rule and Drug-Free Workplace Policies

As most of us are aware, OSHA’s final rule regarding, inter alia, anti-retaliation protections within the workplace was published May 12, 2016. Technically effective on August 10, 2016, OSHA delayed enforcement to December 1, 2016. Under the new rule, OSHA is likely to penalize many employers who continue to utilize blanket post-accident drug and alcohol testing policies. OSHA’s rule appears to fly in the face of an employer’s general right to promote and require a drug-free work environment. A recent 5–2 decision of the Ohio Supreme Court, State ex rel. Cordell v. Pallet Cos., 2016-Ohio–8446, 2016 Ohio LEXIS 3142 (Dec. 29, 2016), illustrates the tension between an employer’s desire to maintain a zero tolerance position on illegal employee drug use, on the one hand, and the employee’s right to file a workers’ compensation claim without fear of retaliation, on the other. As I also discuss below, OSHA’s new rule may rule out most post-injury testing for marijuana.

The Cordell Decision

In Cordell, a majority of the Ohio Supreme Court held that a worker who tested positive for marijuana after seeking medical treatment for a work-related injury was eligible for temporary total disability benefits in spite of the fact that he had been fired after the injury for violating the employer’s zero toleration drug use program. The majority concluded that the worker’s use of the marijuana, while contrary to the employer’s stated policy (and the criminal law), was not an abandonment of the employment.

As I mentioned in an earlier blog regarding the lower appellate court decision in the same case, there was no dispute that the Cordell sustained a work-related accidental injury and that his use of marijuana was not the proximate cause of the injury. Based on the employer’s drug-free workplace policy, a post-accident drug screen was ordered at the emergency room and Cordell tested positive for marijuana metabolites and opiates, specifically morphine. As soon as the employer received this news, it fired Cordell. The Bureau initially awarded TTD benefits, but when the matter was later heard before a district hearing officer, that officer concluded that Cordell was not eligible to receive TTD compensation on the basis that he had violated the employer’s drug-free workplace policy when he tested positive for marijuana and morphine.

The Industrial Commission agreed with the hearing officer, applied the law it said had been established in State ex rel. PaySource USA, Inc. v. Industrial Comm’n, 2009 Ohio App. LEXIS 5938 (June 30, 2009) (memorandum decision), and held Cordell lost his right to TTD benefits by the voluntary abandonment of his employment. The court of appeals [2014-Ohio–5561, 2014 Ohio App. LEXIS 5374 (Dec. 18, 2014)] disagreed, holding that PaySource was not controlling, and that under the Ohio Supreme Court’s decision in State ex rel. Gross v. Industrial Comm’n, 115 Ohio St.3d 249, 2007-Ohio–4916, 874 N.E.2d 1162 (“Gross II”), there had been no abandonment.

On further appeal, the majority of the Supreme Court agreed essentially with the Appeals Court, holding under the reasoning established in Gross II and State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio–499, 881 N.E.2d 861, as well as the requirements of Ohio Rev. Code §§ 4123.54 and 4123.56, an employee who is medical incapable of returning to work as a result of a workplace injury and who is terminated after the injury for pre-injury conduct that was discovered as a result of the injury has not voluntarily abandoned the employment.

Cordell is Exactly the Fact Pattern Targeted by OSHA

The Cordell facts appear to be exactly the situation that OSHA has in the cross-hairs. While the OSHA rule makes no actual mention of post-injury drug and alcohol testing, OSHA’s accompanying comments posit, however, that “blanket post-injury drug testing policies deter proper reporting [OSHA, “Improve Tracking of Workplace Injuries and Illnesses,” 81 Fed. Reg. 29624 (May 12, 2016)]. OSHA argues that significant data supports its position that many workers have been deterred from reporting injuries because of their employer’s post-injury testing policy. The agency goes on to explain that appropriate post-injury drug and alcohol testing policies must be limited to situations in which (a) there is reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury, and (b) for which the drug test can accurately identify impairment caused by drug use.

First Part Might Be Called “the Bee Sting” Rule

As to the “contributing factor” issue, OSHA states in its comments to the rule:

For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.

Here OSHA stresses a point that is often overlooked by employers: one function of reporting an injury is to apprise the employer of specific knowledge that can perhaps be utilized to prevent other injuries. If the employee risks retaliation for reporting it, the risk of injury to others remains.

Second Part of OSHA Rule May Rule Out Most Post-Injury Testing for Marijuana

While I’m cautious in saying this, the second part of OSHA’s rule may essentially prohibit most instances of post-injury testing for marijuana. Work with me here just a second—and I’d love to hear from any of you that disagree—but it is my understanding that most typical drug tests can only determine the presence of marijuana metabolites within the body; they cannot speak to the person’s actual level of impairment, if any. That is to say that while there appears to be some scientific medical basis for suggesting that a person with a 0.08 percent blood alcohol content is impaired, the presence of marijuana metabolites shows nothing about the person’s impairment level. So, under OSHA’s rule, can post-accident drug testing pass muster?

Does the OSHA Rule Create a “Catch–22” for Employers?

I’ve spoken with a few HR executives who worry that OSHA’s new rule creates a “Catch–22,” that on the one hand, employers are allowed, and even encouraged, to adopt drug-free workplace policies and that, on the other hand, the OSHA rule disfavors—some HR folks say it prohibits—the sort of testing that can help assure employees aren’t working beside stoned co-workers.

According to OSHA’s commentary, the new rule does not prohibit drug testing of employees; it only prohibits employers from using drug testing, or a threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. OSHA adds that if, for example, the employer conducts drug testing in order to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the rule would not prohibit such testing. Testing done to comply with Department of Transportation regulations would be such an example. Moreover, the OSHA rule doesn’t appear to penalize employers for random drug testing. By my reading of the rule, it is only blanket post-accident testing policies that are targeted.

What is less clear is the status of blanket post-accident drug testing that is performed pursuant to a requirement in the employer’s workers’ compensation insurance policy. Some policies, for example, allow a premium reduction if the employer has a drug and alcohol testing program in place. The OSH Act’s § 4(b)(4) prohibition on superseding or affecting workers’ compensation laws might be sufficiently broad so as to protect those employers. That remains to be seen.

Penalties for Violations Are Steep

Employers that fail to comply with OSHA’s new rule face serious penalties for each violation. After its recent increase in maximum penalties, employers that violate the anti-retaliation rule can be fined as much as $12,471 per violation and up to $124,000 for willful or repeat violations.

Employers Should Review Drug Testing Policies

Employers should waste no time in reviewing their drug testing policies and procedures, particularly those that relate to post-accident testing. The consequences for being out of sync with OSHA are expensive.