OSHA Announces 3-Month Delay in Enforcement of Electronic Recordkeeping Rule’s Retaliation Provision

Yesterday, OSHA announced that it would delay the effective date of one portion of the final rule, “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule. Specifically, OSHA has delayed enforcement of the anti-retaliation provision, 1904.35(b)(1)(iv), from August 10, 2016 until November 1, 2016.  Section 1904.35(b)(1)(iv) states, “[employers] must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”  According to the agency’s news release the delayed effective date will allow OSHA “to conduct additional outreach and provide educational materials and guidance for employers.”

The announcement was made after a coalition of industry groups and employers filed suit in federal court last week seeking to block OSHA from enforcing the new requirements. TEXO ABC/AGC v. Perez, No. 16-1998 (N.D. Tex. July 8, 2016).  Among other things, the lawsuit seeks a declaratory judgment that the new rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.

As we discussed in a previous blog post, “What OSHA’s Electronic Recordkeeping Rule Means for Workplace Post-Accident Drug and Alcohol Testing,” OSHA stated in the commentary to its new rule that: “the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Since the commentary was published in May, there has been much debate about whether any form of “automatic” (i.e., without reasonable suspicion) workplace post-accident or post-injury drug and alcohol testing would pass muster with OSHA.  We will continue to follow this issue and report on all new developments.   

Employer’s Honest Belief That Employee Could Not Perform Job Due to Use of Opioid Medications Did Not Constitute Disability Discrimination

An employer’s decision to bypass an employee for a position based on the employee’s use of opioids was not enough to prove the employee’s disability discrimination claim, according to the Sixth Circuit Court of Appeals. Ferrari v. Ford Motor Company, Case No. 15-1479 (6th Cir. June 23, 2016).  The Court affirmed summary judgment in favor of the employer on the employee’s disability discrimination claims, as well as his Family and Medical Leave Act retaliation claim.

Ford hired Gianni-Paolo Ferrari in 1996. A few years later, Ferrari sustained a workplace injury. Ford accommodated his “permanent” restrictions for nine years.  Ferrari’s doctor then suddenly removed his restrictions.  Ford’s doctor, however, maintained the restrictions, because earlier records showed that Ferrari was addicted to the opioids he took to manage his pain.  Ford’s doctor was unwilling to remove the restrictions without more information from Ferrari’s doctor.

Ferrari then applied for an apprenticeship. In advance of a pre-apprenticeship physical, Ferrari provided clearances from two doctors.  One doctor indicated that Ferrari was still taking opioids; the other did not address the issue.  This was contrary to Ferrari’s representation that he had been weaning himself off of opioids for three months.  Ford then received a doctor’s note stating Ferrari’s opioid use did not impact his ability to perform the apprenticeship duties.

Ford and Ferrari agreed he would get an independent medical examination. The IME noted that Ferrari’s claim to be off opioids for three months was inconsistent with his medical records.  The examiner concluded that if Ferrari was taking opioids, he would not allow Ferrari to resume unrestricted employment.  Ford’s doctor removed some restrictions, but maintained ladder-climbing and overhead-work restrictions.

The apprenticeship program decision-makers reviewed the restrictions, and bypassed Ferrari from participating in the program. However, Ford told Ferrari that he would be eligible once he weaned off opioids.  Ford also allowed him to work in a different position.  Ferrari filed suit based on this decision.

Ferrari claimed direct evidence of discrimination, because Ford “regarded him” as disabled based on his opioid use. To succeed on this claim, Ferrari had to show that Ford believed his opioid use limited his ability to perform a major life activity.  He alleged Ford regarded him as limited in his ability to perform the major life function of “working.”  To meet this burden, Ferrari had to prove that Ford believed he was unable to perform an entire class of jobs.  The Court reasoned that the inability to perform a single, particular job is not a “major life activity.”  Ford’s belief that Ferrari could not climb a ladder or work at heights was not enough to show Ford regarded Ferrari as disabled.

Ferrari also tried to establish a disability discrimination case using circumstantial evidence. The Court concluded the evidence showed that the apprenticeship decision-makers “honestly believed” that Ferrari had medically-based restrictions, and that Ford’s doctor honestly believed Ferrari was using opioids which could adversely impact his performance.  Therefore, Ferrari could not establish pretext and his claim was dismissed.

Federal Railroad Administration Expands Drug and Alcohol Testing For Maintenance-Of-Way Workers

The U.S. Department of Transportation’s Federal Railroad Administration (“FRA”) recently announced a final rule expanding drug and alcohol testing applicable to maintenance-of-way (“MOW”) employees, effective one year from the date of the rule’s publication (which has yet to be announced). MOW employees work directly on and around railway tracks and crossings, maintaining the tracks, bridges, roadways, signals and electric machinery to ensure trains have a clear path to pass through.  The new rule subjects these employees to a broader spectrum of drug and alcohol testing, including random testing, pre-employment testing, post-accident testing, return-to-duty testing, reasonable cause testing and reasonable suspicion testing.  While expansive testing has long been in place for other railroad workers, such as engineers and dispatchers, MOW employees previously were required to be tested only if they died after an accident.  The rule was published pursuant to a congressional directive in the Rail Safety Improvement Act of 2008.

The FRA also announced a final rule updating safety regulations for MOW employees. These regulations, effective April 1, 2017, include amendments to existing policies regarding roadway maintenance machinery and maintenance worker qualifications, among other things.

Termination For Conduct Caused By Side Effects of Prescription Medication Was Not Disability Discrimination

A federal court in Florida has upheld an employee’s termination due to her “inebriated” conduct that was caused by her use of prescription medications, holding that her discharge did not constitute disability discrimination. Caporicci v. Chipotle Mexican Grill, Inc., Case No. 8-14-cv-2131-T-36EAJ (M.D. Fla. May 27, 2016).

Lisa Caporicci worked for Chipotle as a crew member and had a long history of depression and bi-polar disorder. In April 2013 she informed her manager that she took medication for bi-polar disorder but did not mention any side effects or behavioral issues that might arise from taking the medication.

In May 2013, Caporicci began taking new medication because she was experiencing panic attacks. At that time, she requested a few days off and her request was granted.  She did not work for five days and returned on June 4, 2013.  Four days later, she reported for work in what appeared to be an inebriated state.  She was “very slow, messed up orders and was incoherent.”  Caporicci’s supervisor took her off the serving line and sent her home.  She was fired later that day, for violating Chipotle’s Drug and Alcohol Policy, which prohibits employees from reporting for work or being at work under the influence of alcohol, drugs or controlled substances, or with any detectable amount of alcohol, drugs or controlled substances in his or her system.  The policy further provides that if an employee takes prescription medication that may adversely affect the ability to perform the job, he/she must notify his/her manager prior to starting work.

Caporicci asserted disability discrimination claims under federal and state law, as well as FMLA interference and retaliation claims. Her FMLA claims were dismissed because she had been employed less than 12 months.  As to her disability discrimination claims, Caporicci argued that firing her for medication side effects was tantamount to firing her for her disability.

The Court noted that courts are split on the question of whether a termination based on conduct related to, or caused by, a disability constitutes unlawful discrimination. The majority position, which includes courts in the Eleventh Circuit, holds that an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability.  Additionally, the U.S. Supreme Court discounted the minority position in Raytheon Company v. Hernandez, 540 U.S. 44, 55 n.6 (2003), stating:  “To the extent that [the Ninth Circuit] suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act.”

For these reasons, the Court followed the majority position and held that Caporicci’s termination was not discrimination based on her disability, but rather, it was the result of her employer’s application of a neutral policy which prohibited employees from reporting to work under the influence of drugs or alcohol.

Alcohol-Related Workplace Injuries Recordable, OSHA Says

Employers are not exempt from the Occupational Safety and Health Administration’s reporting rule for on-the-job injuries linked to alcohol intoxication even though the injured employee’s consumption of alcoholic beverages took place off the job.

The interpretation was outlined in a letter from Amanda Edens, head of OSHA’s Technical Support and Emergency Management Directorate, dated March 21, but released April 18.

In general, OSHA mandates employers to record any workplace injury that requires treatment beyond first aid. However, OSHA’s regulation at Section 1904.5(b)(2)(vi) states, “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.”

The employer had asked OSHA whether a worker’s “self-medicating with alcohol for his non-work-related condition of alcoholism” qualified for the reporting exemption. Then a post-injury drug test revealed the worker was intoxicated.

According to Edens, OSHA health care professionals concluded the exception for self-medication does not apply because consuming alcohol “does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder.”

Although the case did not qualify for the exception, Edens explained when a situation would qualify. “Under this exception, an employee’s negative reactions to a medication brought from home to treat a non-work-related condition would not be considered a work-related illness, even though it first manifested at work.”

OSHA interpretive letters explain agency requirements as they apply to particular circumstances, but do not create additional employer obligations. Employers should consult with a Jackson Lewis attorney to determine whether and how their particular workplace situations are affected by this interpretation.

Failure to Hire DOT Driver After Positive Drug Test Result Leads To ADA Claim

A South Carolina company that hauls gasoline, diesel fuel and ethanol throughout the country will face an Americans with Disabilities Act suit brought by a rejected DOT driver applicant with a sleep disorder for which he was prescribed an amphetamine (Dexedrine), the U.S. Court of Appeals in Richmond has decided, reversing a lower’s court’s dismissal of John Lisotto’s lawsuit.  Lisotto v. New Prime, Inc.,   2016 U.S. App. LEXIS 8011 (4th Cir., No. 15-1273, decided May 3, 2016) (not officially reported).

A district court concluded that Lisotto had failed to exhaust his administrative remedies before the Federal Motor Carrier Safety Administration and threw out his discrimination complaint.  However, the appeals court found the lower court had mischaracterized the issue as a conflict between physicians  over Lisotto’s physical qualifications to be a driver, for which FMCSA regulations provide administrative recourse (49 C.F.R. § 391.47 authorizes  the FMCSA to resolve “conflicts of medical evaluation” where the physician for the driver and the physician for the motor carrier disagree concerning a driver’s physical qualifications.)

That was not the case, the Fourth Circuit concluded.  There was no such disagreement.  As long as Lisotto took proper medication for his narcolepsy, he appeared to be qualified, according to the doctors.  Rather, the facts alleged here focused on the refusal to hire Lisotto based on his positive pre-employment drug test result and the company’s medical review officer’s actions in regard to that test result.  Specifically, the medical review officer allegedly did not communicate with Lisotto’s physician to determine whether there was a legitimate medical reason to explain the positive drug test result.  The Fourth Circuit concluded Lisotto’s complaint could “only be read to lodge an ADA claim” against the company based on alleged conduct leading up to its failure to hire him, and by its failure to hire him, even though he had provided documentation that his narcolepsy had been controlled by medications.  Lisotto’s complaint also alleged the company violated the ADA:  by failing to hire him because he tested positive for amphetamines on a FMCSA-required pre-employment drug test; by failing to accept his doctor’s explanation for his positive drug test result; by failing to proceed with the hiring process in light of information provided by his doctor and insisting that he change medications; by reporting a positive drug test result; and, by failing to correct the false drug test report made to FMCSA, DOT or others. The Fourth Circuit remanded the case for further proceedings.

A prospective employer’s alleged failure to address an applicant’s lawfully prescribed medications that control his medical condition, consistent with DOT and FMCSA regulations, may result in ADA claims. Under DOT regulations, carriers may be held responsible for the regulatory compliance by their service providers, such as MROs, even though they are independent contractors.

What OSHA’s Electronic Recordkeeping Rule Means For Workplace Post-Accident Drug and Alcohol Testing

Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register.  A detailed discussion of the rule can be found here on our OSHA Law Blog.  In the final rule OSHA states that “blanket post-injury drug testing policies deter proper reporting” and concludes that:

the final rule does prohibit 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 appropriate 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.  For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.  Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.  In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.”

(Emphasis added).  The OSHA rule has no impact on post-accident testing mandated by federal regulations or permitted by state workers’ compensation laws (e.g., premium reduction laws).  The rule states that “[i]f an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.”  However, post-accident drug and alcohol testing is unregulated in many states.

Numerous questions about post-accident drug and alcohol testing are raised by the OSHA rule. For example:

  • While OSHA states that “reasonable suspicion” is not required for post-accident testing, it is not clear what OSHA means by stating that there should be a “reasonable possibility” that drug use was a “contributing factor” to the reported injury or illness.
  • It is unclear what OSHA means by “the drug test can accurately identify impairment caused by drug use.” In general, urine drug tests detect whether an individual has used drugs in the last 2 to 4 days.
  • OSHA states drug testing “that is designed in a way that may be perceived as punitive” may deter reporting of injuries. But how can an employer determine in advance the subjective perception of an employee to a particular drug test, and is this a valid standard in any case? Further, it may invite abuse to frustrate lawful testing: employees who know they are going to test positive may object to a post-accident drug test as “punitive” even if it is part of a well-designed drug and alcohol testing program that is intended to promote workplace safety.

OSHA intends to issue additional guidance concerning the new rule. Legal challenges to the rule also are anticipated.

In the interim, employers who conduct post-accident drug and/or alcohol testing should review their policies to ensure that they are not conducting overly broad “automatic” post-injury testing that could be viewed as a deterrent to injury reporting by employees. This is particularly true for injuries and illnesses that appear to have no plausible connection to drug or alcohol abuse, such as, for example: allergic reactions, animal or insect bites, back or muscle strains caused by overexertion, carpal tunnel syndrome, and diabetic episodes, among other things.

Due to the unsettled nature of the questions raised by the OSHA rule, employers who conduct post-accident drug and alcohol testing should follow this issue closely and should consult with counsel to determine whether their post-accident drug and alcohol testing programs comply with all applicable laws.

Pennsylvania Employee Proceeds With Invasion of Privacy Claim Arising Out Of Positive Drug Test Result

A federal court in Pennsylvania has allowed an employee to proceed with a wrongful discharge/invasion of privacy claim related to her discharge after a positive drug test result. Wilkinson v. Marvin E. Klinger, Inc., Case No. 4:15-cv-01916, 2016 U.S. Dist. LEXIS 58340 (M.D. PA. May 3, 2016).

Plaintiff, a 58-year old school bus driver, was terminated after taking a random drug test pursuant to her employer’s written policy and testing positive for opiates (including codeine). Plaintiff alleged that she was prescribed medications containing opiates and/or codeine due to migraines and sciatica.  She asserted claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Pennsylvania Human Relations Act, and wrongful discharge/invasion of privacy.  She argued that her termination raised public policy implications because she was “fired for taking legally prescribed narcotics for legitimate medical reasons.”

The employer’s drug testing policy prohibited the use of illegal drugs or legal drugs that could impact the employee’s ability to perform the job safely. The drug testing procedures included review of all positive drug test results by a Medical Review Officer to determine whether the positive test result was caused by lawful prescription drug use.

When the employer moved to dismissed the complaint, the Court dismissed the age discrimination claim, but allowed Plaintiff to proceed with all of her other claims. With regard to the wrongful discharge/invasion of privacy claim, Plaintiff relied on Borse v. Piece Goods Shop, Inc. 963 F.3d 611 (3d Cir. 1992), arguing that there were public policy implications arising from her discharge because she alleged she was fired for taking legal prescriptions medications for legitimate medical reasons.  In Borse, the Third Circuit Court of Appeals held that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy.  The court adopted a test for tortious invasion of privacy wrongful discharge claims, requiring the balancing of “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.”

The employer argued that Plaintiff could not maintain an invasion of privacy or wrongful discharge claim because she consented to the drug test. However, the Court allowed the claim to proceed and stated that Plaintiff was entitled to obtain discovery on the drug and alcohol policy and its implementation so the Court could properly conduct a “fact-intensive analysis” and balancing test to determine whether the employer’s drug policy was intrusive on her seclusion or invaded her privacy.

Pennsylvania Enacts Medical Marijuana Law

Pennsylvania Governor Tom Wolf signed legislation that legalizes the use of marijuana for medicinal uses on April 17, 2016. The new law, Senate Bill 3, known as “The Medical Marijuana Act” permits patients suffering from ALS, autism, cancer, Crohn’s disease, nerve damage, epilepsy, glaucoma, HIV/AIDS, Huntington’s Disease, inflammatory bowel syndrome, intractable seizures, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, severe chronic or intractable pain and sickle cell anemia to use marijuana for medicinal use.  Medical marijuana only may be dispensed in the following forms:  pill, oil, topical forms (including gel, creams or ointments), vaporization or nebulization, tincture or liquid. Smoking marijuana is not permitted under the law.

Although the law takes effect in thirty days, the Department of Health must promulgate rules and regulations for the establishment and operation of marijuana dispensaries as well as the patient registration process and issuance of identification cards to patients and caregivers. The implementation of the program is expected to take between 18 and 24 months.

There are several provisions in The Medical Marijuana Act that impact employers. First, there is a broad anti-discrimination provision:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

However, employers need not accommodate the use of marijuana at work, and may discipline employees who are “under the influence” of marijuana at work:

Nothing in this Act shall require an employer to make an accommodation of the use of medical marijuana on the property or premises of any place of employment. This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

Nothing in this Act shall require an employer to commit an act that would put the employer or any person acting on its behalf in violation of federal law.

Additionally, the law prohibits the following in certain safety-sensitive jobs:

A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 ng/ml: (1) chemicals which require a permit issued by the federal government, state government, federal agency or state agency; or (2) high-voltage electricity or any other public utility.

A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana.

A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

While these provisions appear to benefit employers who operate safety-sensitive workplaces, they also raise a number of questions which are not answered by the statute, including, what is the definition of “under the influence of marijuana”? While most employers rely on urine testing for drugs, the active ingredient in marijuana still can show on a urine drug test days or even weeks after use (depending on the frequency of use).

Employers with operations in Pennsylvania should review their drug and alcohol policies and consult with counsel to determine how they will address these issues once the law goes into effect.

Three-Year Statute of Limitations Applies To Violations of Rhode Island Drug Testing Law

The Rhode Island Supreme Court has held that a three-year statute of limitations applies to claims alleging violations of the employer drug testing statute in that state. Goddard v. APG Sec.-RI, LLC, No. 2014-239-Appeal (R.I. Mar. 7, 2016).

Rhode Island’s employer drug testing statute provides employees with a right to be free from drug tests that are not administered in accordance with the process set forth in the statute. R.I. Gen. Laws §§ 28-6.5-1 to 28-6.5-2.  The law sets out several conditions under which an employer may subject an employee to drug testing.  It also provides that violations of the statute can lead to a misdemeanor conviction of the employer as well as an award of punitive damages, attorneys’ fees, costs and injunctive relief in favor of an employee in a civil action against an employer.  However, the law does not set forth a statute of limitations.

Rejecting the Plaintiff’s arguments that a ten-year statute of limitations should apply for violations of the drug testing law, the Court held that the three-year statute of limitations applicable to “injuries to the person” applies. The Court explained that violations of the drug testing law are analogous to an invasion of privacy and should be subject to the shorter limitations period that applies to other employment-related claims.