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OSHA Discourages Post-Incident Drug Testing

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Most companies require drug and alcohol testing after a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. Those days, according to OSHA, may be officially a thing of the past. Beginning August 10, 2016*, as part of OSHA’s final rules on electronic reporting of workplace injuries, employers must create “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury…

Though the verbiage of the final rule (29 CFR 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary regarding the final rules states that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny.

So, does that mean you, as the employer, can never test for impairment after an accident? The answer, quite simply is no. There are certain circumstances when testing is still acceptable under the new OSHA recordkeeping requirements. OSHA’s commentary with regard to current drug testing notes that, “Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.” To eliminate that deterrent effect, OSHA maintains that drug 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. 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.

So, then what is unreasonable testing? OSHA’s commentary provides examples of this to include the following: where an employee reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. It could also include a situation where one employee injures another employee and the company policy is to test both employees, instead of just the individual who caused the accident. Employers need to update their workplace accident and illness policies and be prepared to defend their rationale for testing when a workplace incident results in drug testing. This could get extremely litigious!
For those employers who are required to test under the requirements of state or federal laws, such as U.S. Department of Transportation regulations or state workers’ compensation laws, continued testing is allowed under the new OSHA rules because conducting testing in those circumstances is not retaliatory.

Employers who do not comply with these new rules face serious penalties for each violation, especially since OSHA has implemented increases that permit maximum penalties to over $12,000 per violation and over $120,000 for willful or repeat violations.

If you wish to provide a safer workplace, protect your company from regulatory fines, minimize undue civil and criminal liability and save substantially on your worker’s compensation costs, then contact SWMSC now.

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