Post-Accident Drug Testing: Part 3 — New York

The New York Workers’ Compensation Board and courts have previously accepted that an employee’s refusal to comply with an employer-mandated drug test constituted good cause for termination and a voluntary withdrawal from the labor market. In recent years, however, the Board and courts have taken a more discerning approach regarding the enforceability of employer policies which “seek to discourage their employees from pursuing Workers’ Compensation claims.” Matter of Asem v. Key Food Stores Co-Op and Matter of Rodriguez v. C&S Wholesale Grocers, Inc., 108 AD3d 848.

This trend is seen most strikingly in the Board Panel decision of Gypsum Systems Interiors Ltd., 2014 NY Work. Comp. 0672830 (February 12, 2014). In Gypsum, the enforceability of the employer’s post-accident drug testing policy was not even before the Board. In fact, the issues before the Board were limited to the claimant’s attachment to the labor market and entitlement to awards. Nonetheless, in reviewing the record, the Board determined that the employer’s “post-incident drug testing policy” was unenforceable and violated WCL Section 120. In reaching this conclusion, the Board noted that the drug testing policy was not triggered by any individualized suspicion of misconduct, but was rather triggered solely by the occurrence of an accident for which medical attention was sought. Importantly, the Board determined that the policy itself was not directed towards improving safety or preventing accidents, because accidents which did not cause injury or property damage did not trigger the drug testing regimen.

The Board in Gypsum focused on two key facts in determining the employer’s post-accident drug testing policy violated WCL Section 120. First, the Board took issue with the fact that the policy applied only to individuals who sustained workplace accidents which caused them to seek medical care, and not on employees would sustained similar accidents which did not cause injury. Second, it focused on the fact that the employer only attempted to apply the policy to the individual claimant, and not any other employee who had been injured on the job in that calendar year.

On May 11, 2016, the Occupational Safety and Health Administration (OSHA) published the long-awaited final rule revising its Recording and Reporting of Occupational Injuries and Illnesses regulations. Under the new rule, OSHA has virtually outlawed post-accident drug testing, making it a violation of the anti-retaliation provisions that consider post-accident testing to have a chilling effect on injury reporting. The final rule prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the proper balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. Michael T. Taylor and Daniel Birnbaum, OSHA New Reporting Requirements and Anti-Retaliation Rules for Workplace Safety Violations, Lexology.com (May 16, 2016).

New York has applied the standards adopted by OSHA for several years now and it would follow that they will adopt and begin to implement the above-referenced revisions pertaining to post-accident drug testing by employers.

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