Employment Law Blog

News, trends and analysis in employment law and HR

Dec 05, 2017

Think twice when conducting post-accident drug testing on employees

Drug and AlcoholSafety and Health 

The Question: Our employee reported that he was injured on-the-job today, but we don’t yet know the nature of the incident or who (if anyone) was at fault. Our standard procedure is to send him for a drug test immediately. Can we do so?

Our Answer: It could be risky if you don’t first assess whether the employee’s actions could have been a contributing factor in the accident. Regulations from the federal Occupational Safety and Health Administration (OSHA) say that a blanket or automatic rule which requires testing after every accident or injury will improperly discourage employees from reporting workplace injuries. Instead, employers should first determine whether the employee’s actions could have been a “contributing factor” in the accident or injury. This is not a particularly high standard to meet, but it does mean that you shouldn’t be automatically testing in every situation. OSHA provides several examples when an employee’s actions couldn’t have been a contributing factor towards the injury, and thus testing for drugs or alcohol would not be appropriate: getting stung by a bee, repetitive motion injuries, an injury caused by lack of machine guarding, or an injury caused by a tool or machine malfunction. When drafting and applying your policy, you should be mindful of OSHA’s stance on post-accident testing and talk with an employment attorney if you have any questions.

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