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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6580 May 1, 1989 OCCUPATIONAL SAFETY AND HEALTH: Authority of Occupational Health Standards Commission to fix standard for drug testing of employees The Occupational Health Standards Commission lacks authority under its rule-making power to promulgate standards on the drug testing of employees for the purpose of detecting controlled substance abuse unrelated to the hazards presented by the character of the work and the work environment. Philip L. Schloop Chair Occupational Health Standards Commission Department of Public Health 3500 North Logan Street Lansing, MI 48909 You have requested my opinion on a question which may be stated as follows: Does the Occupational Health Standards Commission have the authority to promulgate an occupational health standard dealing with employee drug testing? The Occupational Health Standards Commission may promulgate occupational health standards as set forth in MCL 408.1024(4), (5), (7), and (8); MSA 17.50(24), (4), (5), (7), and (8): "(4) The occupational health standards commission may promulgate an occupational health standard pursuant to Act No. 306 of the Public Acts of 1969, as amended,.... "(5) When promulgating occupational health standards, the occupational health standards commission shall promulgate a standard which most adequately assures, to the extent feasible and on the basis of the best available evidence, that an employee will not suffer material impairment of health or functional capacity, even if the employee has regular exposure to a hazard dealt with by the standard for the period of his or her working life. "(7) A standard shall prescribe appropriate forms of warning which are necessary to insure that employees are apprised of health hazards to which they are exposed, relevant symptoms, and the conditions and precautions for safe use or exposure, including appropriate emergency treatment. Where appropriate, a standard shall prescribe suitable protective equipment, control, or technological procedures to be used and shall require an employer to monitor or measure employee exposure, to allow employees or their representatives to observe the monitoring and have access to the records of the monitoring, and to conduct the monitoring in a manner which is necessary for the protection of the employees' health. Former employees shall have access to the records indicating their exposure to toxic materials and harmful physical agents. "(8) Where appropriate, the occupational health standards commission shall prescribe by standard that medical examinations or tests shall be made available, at the employer's cost, to employees to determine if they are adversely affected by exposure to health hazards. If the examination is performed by a physician other than a physician who is retained for that purpose by the employer, the employer shall be responsible only for the reasonable costs of the examination, and only for costs related to the performance of the examination required by the standard. The results of the examinations or tests shall be furnished to the employer, the employee, and upon request of the employee, to the employee's personal physician, and upon request of the director of public health, to the director of public health by the employer. However, nothing in this or any other provision of this act shall be considered to authorize or require medical examinations, immunizations, or treatments for those who object to them on religious grounds, except where necessary for the protection of the health or safety of others. The Administrative Procedures Act of 1969, 1969 PA 306, Sec. 7, MCL 24.207; MSA 3.560(107), as last amended by 1988 PA 363, incorporates a standard into its definition of a rule: " 'Rule' means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure or practice of the agency,...." Thus, the authority the Legislature has delegated to the Occupational Health Standards Commission to promulgate occupational health standards must be accomplished through the rule-making process prescribed in the Administrative Procedures Act of 1969, as amended. This legislatively delegated power to make rules is administrative in nature, and is not, and cannot be the power to make laws. An agency has only the power to adopt rules to carry into effect the will of the Legislature as expressed by the statute. Grand Rapids School Employees Benefit Ass'n v Bd of Education of the City of Grand Rapids, 95 Mich App 143, 148; 290 NW2d 105 (1980), Real v Simon, 510 F2d 557, 564 (CA5, 1975). Statutes often expressly confer power and impose the duty to make rules and regulations such as may be necessary and proper, as the agency may deem, to carry out the provision of the statute. Legislation may not be enacted by an administrative agency under the guise of its exercise of the power to make rules and regulations by issuing a rule which is inconsistent or out of harmony with or which alters, adds to, extends, or enlarges, subverts or impairs limits or restricts the acts being administered. Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1952); Sterling Secret Service Inc v Department of State Police, 20 Mich App 502; 174 NW2d 298 (1969); Jackson v Secretary of State, 105 Mich App 132; 306 NW2d 422, lv den 412 Mich 882 (1981). The power and authority exercised by an administrative agency must be conferred by clear and unmistakable language. Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1955). The scope of the Michigan Occupational Safety and Health Act, MCL 408.100 et seq; MSA 17.50(1) et seq, must be referenced in order to determine whether the Occupational Health Standards Commission has the authority to promulgate a standard on drug testing. The legislative intent is set forth in MCL 408.1009; MSA 17.50(9), which states: "The safety, health, and general welfare of employees are primary public concerns. The legislature hereby declares that all employees shall be provided safe and healthful work environments free of recognized hazards." In interpreting a statute, the legislative intent in enacting its provisions must be ascertained. To do this, the language of the statute itself must be examined. All provisions of the enactment in question must be considered and read together in light of the general purpose to be accomplished, giving effect to the act as a whole. City of Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922), Michigan Life Ins Co v. Comm'r of Ins, 120 Mich App 552, 557-558; 328 NW2d 82 (1982), lv den 417 Mich 1077 (1983). Upon reading MCL 408.1001 et seq; MSA 17.50(1) et seq, it is clear that the legislative intent is to protect employees in the workplace by authorizing the promulgation of health and safety standards relating to the hazards presented by the physical environment or character of the work. The standards must be sufficient and adequate to ensure that the employees would not suffer material impairment of health or functional capacity even if the employee had regular exposure to a hazard for the period of his or her working life. The title to the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq; MSA 17.50(1) et seq, sets forth the legislative purpose of the statute: "AN ACT to prescribe and regulate working conditions; to prescribe the duties of employers and employees as to places and conditions of employment; to create certain boards, commissions, committees, and divisions relative to occupational and construction health and safety; to prescribe their powers and duties and powers and duties of the department of labor and department of public health; ...." (Emphasis added.) Thus, the intent of the Michigan Occupational Safety and Health Act is directed to the protection of employees exposed to substances, agents or conditions determined to be toxic or physically harmful, as they relate to the nature of the work within the workplace. It is the nature of the work and the work environment which is encompassed within the statutory language of this Act, and not the personal habits of employees. There is no language in the statute which demonstrates a connection between the drug testing of employees by employers for the sole purpose of detecting substance abuse, unrelated to exposure to hazards in the workplace, and the legislative intent to protect employees from resulting physical injury caused by toxic or harmful substances, conditions or agents in the work environment. It is my opinion, therefore, that the Occupational Health Standards Commission lacks authority under its rule-making power to promulgate standards on the drug testing of employees for the purpose of detecting controlled substance abuse unrelated to the hazards presented by the character of the work and the work environment. Frank J. Kelley Attorney General
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