Does your Post-Accident Drug Testing Policy Comply with the August 2016 OSHA Rule?

Liberty L. Roberts

Author: Liberty L. Roberts

POST DATE: 5.21.18
Ccha  Labor Employment

Your employee handbook likely includes a policy that allows you to test an employee for drugs and alcohol after a workplace accident or injury.  Post-accident testing is common and serves different purposes. However, an OSHA rule that took effect in August, 2016, requires employers to revisit their post-accident drug and alcohol testing policy, particularly if the policy calls for mandatory drug and alcohol testing for any workplace injury. See 29 CFR § 1904.35(b)(1)(i).

The August 2016 rule requires electronic reporting of workplace injuries. It also requires employers to implement “a reasonable procedure” for employees to report workplace injuries. That procedure cannot deter or discourage employees from reporting a workplace injury.  The rule does not specifically prohibit employers from implementing a mandatory post-accident testing policy. Some state and federal laws require mandatory drug and alcohol testing. OSHA’s new rule does not override those mandatory testing provisions. For instance, commercial motor vehicle drivers who are involved in an accident resulting in a fatality, must be drug and alcohol tested in accordance with the Federal Department of Transportation regulations. Your post-accident testing policy can, and should, provide for mandatory testing in that instance.

However, employers who have mandatory post-accident testing for all workplace injuries will likely face stricter scrutiny by OSHA. Employers should expect OSHA to look closely at any mandatory post-accident testing policy and consider whether the policy uses drug and alcohol testing, or the threat of such testing, as a deterrent to discourage employees from reporting injuries, or a form of retaliation against employees who report injuries.

When reviewing your post-accident drug and alcohol testing policy, you should consider whether your policy limits the testing only to situations in which an employee’s drug or alcohol use is likely to have contributed to the incident. Even then, you should ensure that the test can accurately identify impairment caused by drug use, not drug use in the recent past.

If an employee pulls a muscle while lifting an object, is bitten by an animal, or is injured by a defective piece of equipment, impairment from drug or alcohol use is not likely to have been a contributing factor to the injury. If your policy requires employees with such injuries to submit to mandatory drug testing, OSHA may consider your policy to be unreasonable. Additionally, if your post-accident testing includes the right to conduct a broad array of tests, such as a hair or hair follicle test, OSHA may consider your policy to be unreasonable, as it would detect past drug use, not just current impairment. OSHA takes the position that such policies may have a deterrent effect, in that employees may be less likely to report the injury, even if the drug use was not a contributing factor.

Employers should review their post-accident drug and alcohol testing policy and consider whether revisions are necessary to comply with OSHA’s reporting procedures. Anytime post-accident testing is required, employers should be prepared to justify the need for drug and alcohol testing. If OSHA determines your policy is unreasonable and is likely to deter employees from reporting workplace injuries, you could face significant penalties. Penalties could be as much as $12,000 per violation and over $120,000 for willful or repeat violations.

Contact CCHA to discuss how we can help. For more information about Libby, visit her profile.