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New OSHA Rule Makes Employers Think Twice about Post-Accident Drug Testing

The Occupational Safety and Health Administration (OSHA) put a new rule into effect back in August of this year regarding drug-testing that is conducted after a workplace-related injury or accident occurs. Essentially, if employers have policies in place where they automatically require drug tests in these situations, then they should be immediately re-thinking their practices.

As per OSHA’s new rule, the procedures involved for reporting on-the-job injuries or accidents must be “reasonable” and must not “discourage” employees from coming to their superiors with these kinds of incidents. It is because OSHA believes that these automatic testing procedures do, in fact, deter employees from reporting incidents that should otherwise be reported for fear of being drug-tested that prompted the organization to put such a rule into effect.

This new rule does not ban the practice of drug-testing employees in its entirety, nor does it ban drug-testing that is enforced for the purposes of complying with laws and/or regulations. The rule only works to prohibit drug tests that may be otherwise viewed as a form of punishment for employees who are trying to do the right thing by making a report. Drug-testing policies such as these are normally viewed as “punitive or embarrassing” and will be in violation of the new rule, should they continue to be carried out.

Employers may be concerned, in light of this new rule, that they can’t drug-test their employees at all, for fear that they could be accused of perpetuating a test that could be harmful to the OSHA reporting process. However, the rule recognizes this and specifically states:

“[D]rug 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 light of this new rule, employers should be reviewing their current drug-testing policies to see whether the policies reflect mandatory testing in the event of work-related accidents or injuries. If so, these policies must be revised post-haste to reflect that only accidents or injuries that are suspected to be drug or alcohol-related will be followed up with a drug test upon, or close enough in time to, the occurrence of the incident.

Employers should also make sure that their policies are 100 percent clear on the fact that recrimination against employees for reporting workplace injuries or accidents is strictly forbidden.