OSHA's New Post-Accident Drug Testing Rules

By November 10, 2016 August 22nd, 2018 Uncategorized

drug_test_86499236Enforcement of OSHA’s new Improve Tracking of Workplace Injuries and Illnesses rule is scheduled to begin on December 1, 2016 and part of that are the new post-accident drug testing rules.  Today’s blog post is the second of a series and will focus on what employers need to do to ensure that they are in compliance.

The starting point in addressing the “no discrimination or retaliation” provision in the new rule is that OSHA will be focusing on an employer’s motivation in implementing its post-accident drug testing policy. The new regulation, therefore, has no effect on random drug testing nor on drug testing that is required under federal or state statutes. But if OSHA determines that the intent of an employer’s post-accident policy is to discourage the reporting of work-related injuries or illnesses, then they are likely to issue a citation seeking to eliminate the continued use of such a policy.

As OSHA has explained, a “blanket” or “automatic” post-accident or post-injury drug testing policy will, in effect, be presumed to be retaliatory and intended to deter or discourage reporting. For example, OSHA would scrutinize the required drug testing of an employee who is reporting a repetitive motion or cumulative trauma condition, such as tendonitis or a back strain, or who reports that he has been stung by a bee. Equally concerning to OSHA would be the drug testing of an employee who is injured through no fault of his own when he is struck by another employee operating a forklift.

In these types of cases, absent unusual circumstances, there is no “reasonable possibility” to believe that the employee’s injury or condition occurred because the employee was in any way impaired by drugs or alcohol.

A close review of your company’s drug testing policies is highly recommended. Established drug testing policies should:

  • Identify that drug use was a contributing factor to the injury
  • Limit post-injury testing to situations when drug use likely contributed to the incident
  • Make accidents the trigger, not injuries
  • Test after property damage or other non-injury triggering events (e.g. impact indicators on forklifts)

Also, make sure supervisors are trained on reasonable suspicion testing (if your policy so provides) and that they consult with management, human resources or legal counsel before ordering a post-accident drug test.

For more information on compliance with OSHA’s new rule, contact Tiffany Passmore, Director of Client Services at The Flanders Group at 800-462-6435 ext. 234 or visit OSHA’s FAQ page here.