In its comments to recently published rules on reporting injuries and illnesses, the Occupational Safety and Health Administration (OSHA) says mandatory post-accident drug testing may have a chilling effect on reporting.
Although the rule doesn’t ban post-accident testing—and OSHA even deems it reasonable “in some situations”—OSHA’s commentary says that automatic post-accident testing regardless of the nature of the accident is improper. OSHA recommends post-accident testing only if (1) there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” and (2) the drug test “can accurately identify current impairment.” While you don’t need to specifically suspect drug use to conduct post-accident testing, you do need to believe there is a link and have testing capable of showing the link. Examples OSHA cites as inappropriate for drug testing include “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.”
OSHA’s regulation expressly prohibits retaliating against employees for reporting work-related injuries or illnesses. OSHA’s concern extends to the big-picture effects of retaliation: if an employee is fearful of losing his or her job for reporting an injury or accident, the root cause of that accident won’t be addressed. The retaliation sections of the OSHA rule take effect August 10, 2016. (Other portions of the rule require certain employers to electronically report work-related injuries and illnesses to OSHA beginning July 1, 2017. See our May 19, 2016, newsletter article for details.) States with OSHA-approved state plans, which include Oregon, Washington, and California, will be required to adopt substantially similar requirements.
Tips: Now is a great time to review your drug and alcohol policy, especially if you have mandatory post-accident testing. If you have mandatory testing, you don’t need to stop, but you should narrow your focus to accidents and injuries that could be reasonably related to current impairment (e.g., dropped forklift load or near miss) as compared to injuries, illnesses, or accidents when drug use is unlikely to be a factor (e.g., back strain or aging machine breakage). Your policy should also address the need for prompt testing after the accident, rather than testing after a delayed report. If an employee doesn’t see a doctor until a few days after the alleged injury, then it doesn’t make sense to test for drugs because the test results wouldn’t reveal anything about the employee’s condition at the time of the accident. Another strategy to reduce your exposure to claims of retaliation is to ensure your post-accident drug testing policy requires a test not only after injuries, but also after incidents of property damage and near misses.
We realize that OSHA’s position will take many employers by surprise and raise more questions than we have room to answer here. Your Vigilant employment attorney can answer your questions and develop a drug policy that works for you. If you have questions about OSHA’s injury and illness reporting requirements, call your Vigilant safety professional.
This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.