DOT Drug Testing Compliance

Category: OSHA

Category: OSHA

Majority of States Have Legalized Marijuana, but OSHA’s Post-Incident Drug-Testing Guidance Hasn’t Changed

Posted on by justin

As of May 1, 2023, marijuana had been legalized for medicinal or recreational use, or both, in thirty-eight states. Some 35–55 million Americans report using marijuana two or more times per month. According to published reports, drug tests administered by one large national testing laboratory returned the highest rate of marijuana positive tests since 1997. Accommodation, food services, and retail trade employees led the various industry sectors with an 8.1 percent positivity rate. Transportation and warehouse workers weren’t far behind at 6.4 percent. In addition to marijuana, there has been a push to legalize other drugs, such as in Oregon, where some “hard drugs” in small quantities have been decriminalized.

Quick Hits

  • With the increased decriminalization of marijuana use, a number of states have restricted or limited drug testing for marijuana.
  • Federal law has not changed, however; marijuana is still illegal, and drug testing is required to comply with a number of federal laws, including the Motor Carrier Safety Act.
  • OSHA allows an employer to drug test an employee who reports a work-related injury or illness, if the employer has an “objectively reasonable” basis for testing.

Against this backdrop of skyrocketing marijuana use, many states and localities where recreational marijuana has been legalized have implemented measures that restrict or limit drug testing in favor of indicia of impairment. Given the long presence of tetrahydrocannabinol (THC) metabolites, someone who used marijuana days or weeks earlier, while no longer impaired, can still test positive for marijuana. Moreover, it is not possible, with a drug test alone, to measure the level of impairment—it is only possible to determine that the person tested has that substance in his or her system. Some states and locales have all but eliminated preemployment drug testing as a result of the impossibility of correlating impairment with a certain level of metabolite. In some states even post-accident drug testing where there is no sign of impairment is not permitted.

In contrast, federal law has not changed and marijuana and other “drugs” are still illegal, and drug testing is still required to comply with federal laws such as the Motor Carrier Safety Act. In addition, drug testing of federal contractors is still required. But what about post-incident drug testing and the federal Occupational Safety and Health Administration (OSHA)?

In 2016, OSHA issued a standard interpretation related to 29 C.F.R. section 1904.35(b)(1)(i) and (iv) that broadly addressed two topics: safety incentive programs and post-accident drug testing. In short, as relates to post-incident drug testing, OSHA took the position in that memorandum that section 1904.35(b)(1)(iv) does not prohibit an employer from drug testing employees who report work-related injuries or illnesses if the employer has an “objectively reasonable” basis for testing, and the policy does not apply to drug testing employees for reasons other than injury reporting. The memo continued and stated that “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” If there was a reasonable basis for believing drug use by the employee could have contributed to the injury or illness, then OSHA would view the testing as “objectively reasonable” and not issue citations for testing the employee.

Though OSHA stated testing someone who had reported an injury or illness would be objectively reasonable, it also said:

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.

Thus, a host of factors beyond mere indicia of impairment are considered by OSHA in terms of whether the testing of an injured employee is reasonable or not. OSHA continued and said that testing someone whose injury could not have been caused by drug or alcohol use was likely a violation of 29 C.F.R. section 1904.35(b)(1)(iv).

In 2018, OSHA issued a second standard interpretation on the issue and stated: “The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.” That standard interpretation went into far less detail than the 2016 version, but it did offer the following examples of permissible workplace drug testing:

  • “Random drug testing.”
  • “Drug testing unrelated to the reporting of a work-related injury or illness.”
  • “Drug testing under a state workers’ compensation law.”
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule.”
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

OSHA has not cited a significant number of employers for post-incident drug testing, but given the apparent increased use of marijuana and the growing number of state restrictions prohibiting employers from testing, it is very possible that we will see OSHA begin to focus on and scrutinize employer post-incident drug testing. With that scrutiny, we are likely to see more citations and penalties.

Ogletree Deakins’ Drug Testing and Workplace Safety and Health practice groups will continue to monitor developments with respect to these and related policy topics and will provide updates on the Drug Testing and Workplace Safety and Health blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs. Please also follow us on LinkedIn and Twitter.

In addition, further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

OSHA Issues COVID-19 Guidance for the Oil and Gas Industry

Posted on by justin

One of OSHA’s benchmarks for protecting employees from COVID-19 requires employers to assess their workplaces and determine whether job tasks place their employees at one of four levels of risk exposure: very high, high, medium, and lower risk. The agency recommends that employers conduct a hazard assessment to identify whether and how often workers may be in close contact (i.e., within six feet) to coworkers, supervisors, or other individuals at the job site.

The good news for the oil and gas industry is that OSHA does not anticipate a very high or high risk of exposure. According to the guidance, “[m]ost oil and gas drilling, servicing, production, distribution, and/or processing tasks are associated with lower or medium exposure risks.”  Examples of oil and gas work activities with a medium or lower risk include the following:

Medium-Risk Activities

  • “Oil and gas drilling, servicing, production, distribution, and/or processing tasks that require frequent close contact (within 6 feet) with coworkers, contractors, customers, or the general public.
  • Work in “frequent high-traffic areas,” such as control rooms, trailers, and doghouses.
  • “Traveling within facilities or between facilities when workers must share vehicles.”

Low-Risk Activities

  • “Oil and gas drilling, servicing, production, distribution, and/or processing tasks that do not require frequent close contact with other coworkers, contractors, customers, or the public.”
  • “Performing duties in non-public areas of oil and gas production and/or processing facilities, away from other workers or the public.”

Use Cloth Face Coverings

Regardless of the exposure risk level, OSHA advocates that all workers in the oil and gas industry wear cloth face coverings. The agency also recommends that workers wear face coverings “in common areas such as the drill deck, doghouse, control rooms, and office spaces in the trailers.”

Controls to Mitigate Medium Risk Activities at the Worksite

OSHA emphasizes social distancing as the primary method of mitigating worker exposure to COVID-19. This includes a recommendation to “[c]onfigure communal work environments (such as control rooms, jobsite trailers and/or doghouses) so that workers are spaced at least six feet apart, if possible.” If the nature of work makes social distancing infeasible, then the use of physical barriers between workers (such as strip curtains, plexiglass, or other impermeable dividers or partitions) are acceptable, so long as the barrier “does not create additional safety hazards (e.g., reduced visibility in/around work vehicles or other equipment).”

OSHA recommends that employers pay special attention to pedestal or hard-mounted fans to ensure they do not blow air directly from one employee to another. The agency also suggests that personal cooling fans be removed from the worksite to help reduce the spread of COVID-19.

Other suggestions from OSHA include the following:

  • Stagger shifts and break times, when possible, “to avoid congregations of workers in parking areas, locker and shower rooms, smoking areas, control rooms and other common areas.”
  • “Encourage … single-file movement with six feet between each worker through the facility/site, where possible.”
  • Utilize floor markings or signs (such as those used by supermarkets) to remind employees to maintain social distancing
  • “Designate workers to monitor and facilitate distancing.”
  • “Limit the number of personnel allowed in doghouses, control rooms, and other operating areas.”
  • “Limit meeting sizes and/or hold meetings virtually or using social distancing outside, if possible.”
  • “Remove or rearrange chairs and tables, or add partitions to tables, in break rooms, control rooms, and other areas workers may frequent to increase worker separation.”
  • “Identify alternative areas to accommodate overflow volume, such as training and conference rooms, or using outside tents for shaded break and lunch areas.”

Carpooling or Use of Company Vehicles

Under the guidance, employers should “[e]ncourage workers to avoid carpooling to and from work and job sites, when possible.  However, this can be a challenge due to the nature of the oilfield industry, which often requires employees to travel to worksites far away from their homes. For example, traveling to a worksite 100 miles from a local yard is not uncommon for oilfield work in West Texas. Recognizing this reality, OSHA recommends the vehicle’s windows remain open to circulate air. The agency also suggests the following:

  • Wear cloth face coverings.
  • “Limit the number of people per vehicle as much as possible.”
  • “Encourage cohorting (grouping together) of workers to keep exposure groups as small as possible.”
  • “[M]aintain social distancing as much as possible.”

“[P]ractice proper hand hygiene, such as hand washing or, if soap and water are not readily available, use hand sanitizer that contains at least 60% alcohol, before entering the vehicle and when arriving at the destination.”

  • “Clean and disinfect commonly touched surfaces after each carpool or shuttle trip (e.g., door handles, handrails, [and] seatbelt buckles).”
  • “Encourage workers to follow coughing and sneezing etiquette when in the vehicle.”

Takeaways

  • Although the OSHA guidance did not mention the importance of daily COVID-19 prescreening efforts such as questionnaires and temperature checks, oil and gas employers may want to adopt these control methods.
  • Employers may want to ensure that daily cleaning includes regular disinfectant cleaning of oilfield equipment (such as tongs) and tools.
  • OSHA’s recommendations mean that oil and gas employers may need to intensify their heat illness prevention efforts this summer. The removal of personal fans and use of face coverings increases the heat load on employees. Among other things, oilfield employers may want to consider increasing the frequency of water breaks and bringing extra water to the worksite. In addition, employers may want to discontinue the use of common water dispensers, such as iced-down five-gallon coolers, and replace them with bottled water.
  • Rolling down the windows on the crew truck when driving to a location may not be a bad idea when temperatures cool down later this year, but for now employers may want to take into consideration the heat and often-dusty conditions in places like West Texas, where the heat index can soar above 110 degrees Fahrenheit. Most crews would presumably opt to keep the air conditioning on, and wear face coverings in the crew truck.
  • Partitions on the work floor may pose issues for employers. Crews and oilfield equipment (tongs, for example) frequently move around the work floor. Given the nature of the work, plexiglass partitions likely cannot be bolted into fixed positions on the work floor and could present a hazard. Strip curtains are an interesting idea, seemingly borrowed from OSHA’s meatpacking guidance. But where do employers hang them on a drilling or well servicing rig?
  • Oil and gas employers can focus their prevention efforts on universal precautions, such as promoting hand washing, practicing social distancing as much as possible, and when social distancing is not feasible, requiring the use of face coverings (subject to exceptions).

 

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
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