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Employers are not exempt from federal requirements to record workplace safety injuries and illnesses involving intoxicated workers, even if post-accident testing reveals the employee was drunk at the time of the incident.
The U.S. Occupational Safety and Health Administration recently issued an interpretation letter in response to a December 2015 inquiry outlining a scenario in which an employee sustained a hand injury, received treatment and was immediately given a drug test — the results of which indicated the employee was intoxicated by alcohol.
The inquiry asked whether the injury must be recorded in an employer's OSHA injury and illness logs or if it met a regulatory exemption for not recording self-inflicted injuries, given that the employee was self-medicating due to his nonwork-related alcoholism. OSHA's answer was no, citing their physicians' conclusion that the intake of alcohol does not treat the disorder but is a manifestation of the employee's alcoholism.
“It continues to signal that there are very limited circumstances where a work-related injury will be exempt from recordkeeping,” said Tressi Cordaro, a shareholder with Jackson Lewis P.C. based in Reston, Virginia. “The agency's answer doesn't surprise me.”
The fact that the employee is intoxicated or drugged does not release employers from their recording obligations if the injury is otherwise recordable because it is work-related, said Douglas Crim, principal with Miller, Canfield, Paddock & Stone P.L.C. in Lansing, Michigan.
“This is not OSHA finding that the employer is guilty of a violation of a standard,” he said. “If a citation were to be issued, I would suggest the employer would have to pursue an employee misconduct defense. For an employer to do that, they have to have policies and rules in place that prohibit drinking on the job, taking drugs on the job.”
However, OSHA's response “muddies the waters” because recording of a work-related injury normally means the employer potentially had some responsibility, but that may not be the case for employers with good, well-supervised drug and alcohol programs and testing, said Patrick Joyce, Chicago-based associate attorney with Seyfarth Shaw L.L.P.
These interpretation letters put employers on notice about the position OSHA will take in interpreting its rules and during potential litigation, Ms. Cordaro said. “While OSHA calls them guidance, they can have a binding legal effect,” she said.
The letter comes in the broader context of OSHA's concerns about post-accident drug and alcohol testing potentially discouraging employees from reporting injuries and illnesses and employers' legitimate interest in implementing testing as part of an overall drug and alcohol policy, experts said.
“There's some friction there,” Mr. Crim said. “I don't know why OSHA would be against testing employees after they have an accident. The only reason I can think of is that if an employee was intoxicated or under the influence, it would probably make them reluctant to report an injury, but that's not a good reason not to have tests after an accident. I would be against the idea of having some prohibition against employers testing after accidents.”
OSHA's position is still vague even with the interpretation letter, said Wes Scott, director of consulting services at the National Safety Council in Itasca, Illinois.
“OSHA wants to give guidance, but at the end of the day there are limits to what they have power over,” he said. “If there was any more clearer guidance that would support the need to do random drug testing and post-incident testing … unions find that a difficult pill to swallow and would not support that just because of the perceived abuses that could happen.”