New OSHA Rule May Prohibit Blanket Drug Tests Following Work Injuries

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses. While the new rule makes no direct mention of post-injury drug testing, occupational experts analyzing OSHA’s commentary to the rule have voiced concerns that employers may no longer be able to seek broad-based drug testing of injured employees following work-related injuries. Others argue that the new rule contradicts OSHA’s oft-stated commitment to a safe workplace.

The New Rule Purportedly Promotes Accurate Reporting of Injuries

Beginning August 10, 2016, employers in California and around the nation that are subject to OSHA (i.e., employers with 11 or more employees) must establish “a reasonable procedure” for employees to report work-related injuries and illnesses.

The rule says that the employer’s reporting procedure may not deter or discourage a reasonable employee “from accurately reporting a workplace injury or illness.” Here’s the rub: Some employee groups contend that blanket alcohol and drug testing after workplace accidents does just that – it deters some injured workers from reporting their injuries.

OSHA seems to agree with the employee groups. In its commentary accompanying the final rule, the agency says the following:

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.

What is an Employer to Do?

According to OSHA representatives, only narrowly tailored post-accident testing – testing in situations in which drug use likely contributed to the accident and that accurately tests for impairment – will be considered immune from OSHA’s enforcement action. This seems to go against OSHA’s earlier pronouncements that employers should have the ability to promote a safe workplace, and that drug testing was one means of assuring that the workplace was drug free.

Here are a few suggestions for employers:

 Blanket post-accident drug testing policies should be carefully reviewed. Referrals for post-accident testing should be tied to those situations in which it appears that the employee caused or contributed to the accident, or those situations in which there is a reasonable suspicion that the employee had been using drugs.

 Employers who must conduct post-accident testing in order to comply with, for example, U.S. Department of Transportation regulations, should continue to do so.

 Be aware that most drug tests only identify recent drug use; they do not prove that the accidental injury was caused by drug use. Because the OSHA rule appears to prohibit blanket testing following incidents, random testing of all employees might still be authorized.

Does Your Business Have a Post-Injury Drug Test Policy?

Does your business have policies regarding drug testing following work-related injuries or apparent accidents? Are you concerned that your policies may be impacted by the new OSHA rule? Have you recently reviewed your post-injury policies? Have you considered random drug testing? Prior to establishing or modifying your policies, it would probably be advantageous to consult with an experienced employment law attorney.

The law is complicated and unsettled. Don’t wade through these choppy waters alone. For many years now, the attorneys at CKB VENNA LLP have provided employment/labor counseling and litigation services to nearly every type of business. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909-980-1040 – or complete our online form.

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