OSHA Pre-empts CBA Drug-Testing Provisions?

By Fiona W. Ong - Shawe Rosenthal LLP

August 23, 2018

In light of the Occupational Safety and Health Administration’s recent announcement of a Notice of Proposed Rulemaking to rescind the majority of its controversial electronic reporting requirements, I decided to review some previous guidance on these requirements (yes, because I am that much of a nerd). The requirements had been imposed through a final rule issued in 2016, which also sought to provide additional protections to workers for reporting work-related illnesses and injuries – specifically targeting safety incentive programs and drug-testing programs. I was shocked to realize that OSHA asserts that post-incident drug-testing of employees pursuant to a collective bargaining agreement violates the Occupational Safety and Health Act!

Now, this was not set forth in the 2016 final rule itself. Rather, OSHA subsequently issued a guidance, “Improve Tracking of Workplace Injuries and Illnesses – Employee’s right to report injuries and illnesses free from retaliation,” in which it specifically addressed the potential for deterring employees from reporting injuries or illnesses in the context of safety incentive and drug testing programs. Specifically as to drug testing programs, OSHA states that employers may only conduct post-incident drug-testing “if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.” If there is no such possibility, then, according to OSHA, such testing would likely discourage reporting and therefore would be considered a violation of the Act. At the time that OSHA issued the final rule, there was widespread discussion by legal commentators that employer policies requiring automatic testing after every incident are now prohibited by OSHA. Such policies were quite common, and OSHA’s new and aggressive position caused some consternation in the employer community.

OSHA recognized exceptions to this position, such as when employers are required to conduct post-incident testing under federal or state law, including workers’ compensation laws – even if the choice to require such testing is voluntary under the law. It further extended the exception to post-incident testing for the purpose of lowering private insurance premiums, in order “to maintain consistency between public and private worker’s compensation coverage in the same state.”

But there is one exception that OSHA refused to recognize – where post-incident testing is required by a collective bargaining agreement. The guidance provides the following example:

Scenario 5: Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee X (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X pursuant to a collective bargaining agreement?

Answer: Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries absent a reasonable belief that drug use could have contributed to the injury or another reasonable basis for requiring a drug test. Although OSHA does not intend for section 1904.35(b)(1)(iv) to supersede other state or federal programs addressing post-injury drug testing of employees, collective bargaining agreements may not supersede section 1904.35(b)(1)(iv).

Wow! I know that CBA provisions requiring automatic drug testing after an accident are not unusual among unionized companies. OSHA’s position means that employers complying with the CBA under the National Labor Relations Act are violating the Occupational Safety and Health Act! I would imagine that most unions would not contest an employer’s decision to bypass drug-testing, but because such testing is part of the CBA, it actually requires the employer to discuss this with the union. And even though, under the NLRA, a union can waive all kinds of rights on behalf of its members during collective bargaining negotiations, it appears that OSHA believes this is one that cannot be waived.