Employer Law Report

Tag Archives: drug testing

Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.

DOT amends drug testing rules effective Jan. 1, 2018

In response to the nation’s opioid epidemic, the Department of Transportation (DOT) amended its testing program requirements to require inclusion of four semi-synthetic opioids, hydrocodone, oxycodone, hydromorphone and oxymorphone, to the required drug testing panel. DOT also added methylenedioxyamphetamine (MDA) to the panel and removed methylenedioxyethylamphetaime (MDEA) as a confirmatory test analyte as redundant since MDA is a metabolite for MDEA. Because the added opioids can be legally taken pursuant to a doctor’s prescription, this may result in more initial positives that trigger MRO review and require the MRO to evaluate whether the employee is taking the opioid pursuant to …

OSHA retaliation rules are going forward

On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an

Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here. 

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and …

Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee’s Return From Alcohol Rehab

The recent decision out of Texas in Sechler v. Modular Space Corporation highlights a recurring issue for employers — managing employees who return to work following rehabilitation for substance abuse. In Sechler, the plaintiff, a recovering alcoholic, was by all accounts an excellent employee for approximately 10 years until he experienced a relapse. He requested EAP services and, as a result received outpatient treatment for about a month.

Upon returning to work, he was asked to sign a "Return-to-Work” agreement, outlining the requirements with which he had to comply as a condition of his return to work. The Agreement specified …

Drug Rules for Commercial Motor Vehicle Drivers Updated

The Federal Motor Carrier Safety Administration ("FMCSA") has published another final rule which takes effect today, February 29, 2012. This rule addresses the drug use of commercial motor vehicles drivers, and the FMCSA aims to eliminate inconsistencies in at least three areas.

First, the final rule amends the physical qualifications for commercial motor vehicle ("CMV") drivers to clarify that drivers may not, under any circumstances, use Schedule I drugs and be qualified to drive a CMV. This change aligns the language with that used by the Drug Enforcement Agency ("DEA") in its regulations. The final rule now cites to 21 …

Refresher on Alcohol Testing and the ADA

Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.

So, if employers want to ensure their workers aren’t under the influence of …

Sixth Circuit Holds That Employee Must Be “Qualified Individual With A Disability” to Challenge Termination Under Drug Testing Program

Earlier this week, we reported on a New York Times article about employer efforts to address the impact of prescription drugs in the workplace. The article profiled workers at the Dura Automotive Systems Inc. plant in Lawrenceburg, Tennessee who were terminated for testing positive for prescription drugs that Dura considered to raise safety issues. Yesterday, the Sixth Circuit handed down a decision in a case that challenged the company’s drug testing policy. 

In that decision, the Court held that several of the workers could not challenge their terminations under that policy because they were not "qualified individuals with a disability" under the ADA. The …

Employers Raise Stakes In Battle Against Workplace Drug Use

Over the last week or so, two stories about drugs in the workplace caught my eye. First was the NY Times article on employer efforts to respond to the increasing use of prescription drugs in the workplace. The article appropriately addressed the conflict between employer needs to ensure a safe workplace and employee rights to privacy and the protections afforded by the ADA. As a result, some employers have begun testing employees for prescription painkillers and other prescription drugs and terminating employees that test positive. 

The second issue in the media this past week involved the disclosure that officials from the Houston Texans …

DOT Direct Observation Requirements Go Into Effect on August 31st

On July 30, 2009, the Department of Transportation issued a final rule reinstating the direct observation drug testing procedures recently approved by the U.S. Court of Appeals for the District of Columbia. The final rule, which goes into effect on August 31, 2009, requires that all return-to-duty and follow-up tests be conducted in a manner that permits the direct observation of specimen collection to prevent the use of prosthetic or other cheating devices.…

D.C. Circuit Upholds “Direct Observation” Requirements for USDOT Return to Duty and Follow Up Testing

In a decision released May 15, 2009, the U.S. Court of Appeals for the District of Columbia upheld a Department of Transportation (DOT) regulation that requires employees who are returning to safety-sensitive duties after having completed a drug treatment program due to failing or refusing to take a drug test, to submit to return to duty and follow up testing under "direct observation" conditions. This decision and the regulation it upholds applies to employers in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries that are subject to the DOT drug-testing regime. Under the regulation’s "direct observation" procedures, the …

Court Stays DOT’s Mandatory Direct Observation for Return-to-Duty and Follow-up Testing

The U.S. Department of Transportation’s (DOT’s) previously announced mandatory direct observation of specimen collection for return-to-duty and follow-up controlled substances test (see my October 28th post) has been stayed. The United States Court of Appeals for the District of Columbia Circuit has issued an administrative stay, which temporarily delays implementation of DOT’s direct observation requirement. As a result of the court-ordered stay, DOT has announced that direct observation by DOT-regulated employers for these two types of tests will remain optional and at the employer’s discretion. We will keep you posted on further developments.


Employers Subject to the U.S. Department of Transportation’s Substance Abuse Testing Requirements Must Now Conduct Direct Observation for Return to Duty and Follow-up Testing

Beginning November 1, 2008, employers covered by the United States Department of Transportation’s controlled-substance testing regulations must conduct direct observation collection for “return to duty” and “follow-up” controlled substance tests. These regulations apply to employers governed by the Federal Highway Administration (such as private motor carriers), the Federal Railroad Administration (which regulates railroad operators), the Federal Aviation Administration (which regulates airlines and related industries), the Federal Transit Authority (which regulates companies doing business with mass transit providers), and the Research and Special Programs Administration (which regulates pipeline industries).…