New OSHA Regs Will Prohibit Most Mandatory Post-Accident Drug Tests

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

OSHA has, once again, joined the parade of federal and state agencies which have changed their position with respect to which policies are acceptable in the workplace, thus requiring employers to revisit their policies and procedures.

It has long been the position of OSHA that certain policies issued by employers may discourage employees who wish to report a job-related injury. An example would be a policy which rewards either individual employees or groups of employees for perfect safety records.  It has been OSHA’s opinion that the prospect of receiving certain cash or other benefits if no injuries were reported would discourage employees from pursuing the injury reporting process the law provides for them.

In commentary accompanying recently issued OSHA final regulations, presently scheduled to become effective December 1, 2016, unless enjoined before that date, a change in OSHA’s enforcement position with respect to automatic drug testing after work-related injuries was articulated. OSHA made it clear that it believes that a blanket mandatory post-accident drug testing requirement would deter proper and accurate reporting of workplace illness or injury, and thus would be subject to OSHA citation.

Here are some take-aways from the commentary issued by OSHA:

  • OSHA made it clear that it was not trying to ban all post-accident drug testing. It would allow such testing if an employer conducted that testing to comply with the requirements of a state or federal law or regulation. An example would be DOT mandatory post-accident drug tests for employees who were performing safety functions, as defined by the DOT.
  • OSHA stated that non-mandated post-accident drug testing would still be permitted, but only if there was a “reasonable possibility” that drug use was a contributing factor in the injury or illness. For example, OSHA indicated that it would view as “suspect” the required drug testing of an employee who reported a repetitive motion or related injury, such as a back strain, or if the employee had been struck by another employee operating a forklift. It explained that in those circumstances, there would be no “reasonable possibility” to believe that the employee’s injury or condition resulted from the use of drugs.
  • Unfortunately, OSHA did not define the criteria which would be used to determine whether there was a “reasonable possibility” that drug use was a contributing factor in the illness or injury. It is not clear whether the criteria would be the same as those normally applied to “reasonable suspicion” drug testing, or something a bit less.
  • Until OSHA develops some uniform criteria to apply in these situations, it is suggested that a normal, common-sense evaluation of injuries would serve an employer well, in the eyes of OSHA. For example, if an employee cut themselves either on a machine or with a knife, or violated a lockout/tagout procedure, or smashed a finger, it would appear that post-accident testing might be more acceptable. However, collecting information regarding the injured employee’s conduct and behavior at or near the time of the accident, would be advisable, at least until OSHA’s position in that respect is clarified. By way of contrast, if an employee were stung by a bee or, to restate the example above, had a repetitive activity injury, most likely post-accident drug testing would be found to violate OSHA’s new regulations.
  • The drug testing used by the employer must be capable of identifying present impairment, not just past use.
  • The new policy does not preclude random testing, nor reasonable suspicion drug testing.
  • The actual regulations themselves include provisions relating to notifying employees of their right to report work-related injuries without retaliation (use the OSHA poster), and the electronic reporting of certain injuries to OSHA.
  • All employers are encouraged to reexamine their current drug testing policies and, in the course of applying the principles stated above, determine whether a rewrite of the policy would be appropriate, so as to avoid the possibility of a future OSHA citation.
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