New OSHA Rule Affects Post Accident Drug Testing

Effective January 1st 2017, non-federally regulated employers need to ensure that they perform post-accident drug testing only in “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.”  This, according to the “Improve Tracking of Workplace Injuries and Illnesses” OSHA final ruling.

Employers may need to update their drug testing policies that allow for blanket requirements that require drug testing be performed for any workplace accident. The ruling does not explicitly prohibit post-accident testing, rather, to ensure that post accident testing occurs only when the employer believes that impairment may have been a factor. The obvious problem with this type ruling is that it places employers in the sticky situation of having to determine when drug use would have “likely” been a factor in an accident. Employers need not specifically suspect drug or alcohol use or impairment before testing, but there should be a reasonable possibility that use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

One can speculate that the new OSHA law’s intent is to remove the use of post-accident drug testing as a punishment for employees involved in workplace accidents. OSHA provided examples of scenarios where employers should not perform drug testing:

“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.”

No Change for Federal Testing

For federally regulated testing, employers should continue to perform post-accident testing as required by DOT regulations. Since federal law requires post-accident testing, it would not be considered to be performed in a retaliatory manner. However, most federally regulated companies also have general “non-DOT” drug free workplace policies where this ruling would apply.

What can employers do?

• Train supervisors to spot the sign and symptoms of drug use or abuse. All supervisors should have a basic knowledge on how to spot the signs and symptoms of drug use and abuse. Nearly all modern drug testing policies allow for reasonable suspicion drug and alcohol testing, but just having the provision in your policy is not going to prevent accidents. Having supervisors who can spot the signs and symptoms of drug use can help prevent accidents from happening in the first place. We happen to know of a good online program *wink, wink*  that can makes training your entire workforce a pretty easy task.
• Update your drug and alcohol policy and ensure supervisors and employees have reviewed it. It’s more important than ever to ensure that your drug testing policy is up to date. Drug testing positivity rates have risen in the last two years and state laws have been rapidly changing largely due to a more relaxed sentiment about marijuana use. Chances are your drug testing policy has not been touched since it was originally drawn up. The Current Consulting Group can be a great place to get assistance if needed.
• Consult your legal counsel. As always, it can be a good idea to chat up your legal counsel whenever changes like these occur.
• Stay Updated. OSHA keeps a running list of changes that employers can check in on here.