OSHA Says Automatic Post-Accident Drug Testing A Violation Of Law

In May, we talked about OSHA’s new final rule on reporting workplace injuries and illness. If you downloaded the entire 273 page rule and managed to make it to page 193, you would read that, under the new rule, employers are prohibited from using drug testing, or the threat of drug testing, to deter employees from reporting workplace injuries.

Let’s take a closer look at what exactly this means and how it could affect your business.

What The Final Rule Says

In a nutshell, the final rule says that employers cannot deter proper reporting or retaliate against employees for the reporting of a workplace injury or illness. This could be as simple as verbal threats of retaliation if employees report accidents; or, if could be far more subtle, cloaked as an “incentive” for teams or department with the least number of injuries in a given time period.

Post-Accident Drug Testing As A Deterrent

Several commenters brought post-accident drug testing issues up as related to the new final rule on reporting injuries. Examples cited included:

The U.S. House of Representatives Committee on Education and Labor has recognized that “to intimidate workers, employers may require that workers are tested for drugs or alcohol [after every incident or injury], irrespective of any potential role of drug intoxication in the incident.”

Scherzer et al. (2005), which found that 32 percent of surveyed Las Vegas hotel workers who reported work-related pain were forced to take drug tests, even though studies like Krause et al. (2005) show that such injuries are often caused by physical workload, work intensification, and ergonomic problems—not by workplace mistakes that could have been caused by drugs.

The American National Standards Institute (ANSI) has similarly recognized the need for drug testing programs to be “carefully designed and implemented to ensure employees are not discouraged from effective participation in [injury and illness reporting programs].”

OSHA’s Interpretation Of The Provision

Based on the evidence presented, OSHA believes that “blanket post-injury drug testing policies deter proper reporting.”

That means, if you have a policy in place that automatically mandates drug testing after every accident, injury or illness, you are in violation of the law.

OSHA Is NOT Banning Drug Testing!

The rule makes automatic drug testing illegal because it has been shown to discourage employees from properly reporting injuries. However, you may still use your discretion and drug test an employee after an incident. But, if you do, you must have very good reason to believe that “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.”

What About Workers Compensation?

Some commenters were concerned about drug testing as required by worker comp, and whether this would violate OSHA’s rule.

OSHA’s response was that, “If 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. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4).”

Wondering Where Your Post-Accident Testing Policy Stands?

While the final rule was originally scheduled to go into effect August 10, OSHA has pushed it back to November 1, 2016 to give employers more time to prepare. If you currently have a mandatory post-accident drug testing policy in place, it might be time to revise it.

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