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OHSA Still Allows Post Accident Drug Testing

Last updated on December 23rd, 2020 at 03:52 pm

From 2016 to 2018 there was a lot of activity within the Occupational Safety and Health Administration (OHSA) related to post accident drug testing. Employers across the United States have been conducting post accident drug testing for years. Learn about what happened and that now post accident is not prohibited.

OSHA Record Keeping and Reporting Rule

In 2016, the Occupational Safety and Health Administration (OSHA) started enforcing new rules and guidelines regarding post-accident drug and alcohol testing.

The new rules, which include anti-retaliation provisions of its Recording and Reporting Occupational Injuries and Illness regulations, is formally recognized as OSHA 29 CFR 1904.

As with any change in rules and regulations that have a widespread effect, many companies needed to update their policies. Similarly, US states had to update their state laws. And, when complex rules get extensive changes, we can expect confusion…and lawsuits.

Even though OSHA 29 CFR 1904 was proposed in May of 2016, the enforcement of the new rules was delayed nearly seven months from lawsuits filed by employers over the changes.

One sticking point of confusion was the misunderstanding that the new rules made post-accident drug testing illegal.

To be clear, under the new rules and regulations, post-accident drug testing is not illegal. Now, blanket post-accident drug testing has been eliminated, so if you have a provision including it in your drug testing policy, it’s time to revisit your policy so that it, and you, comply.

The confusion also stems from some updates to CFR 1904 that were written to eliminate post-accident processes that could be construed as discriminatory or retaliatory to employees.

Also contributing to the misunderstanding, OSHA 29 CFR 1904 does not explicitly mention post-accident testing. Instead, OSHA simply interprets the regulations to apply to post-accident testing.

OSHA’s statement on post-accident drug testing.

On the new rule, OSHA has stated that:

“…the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

This quote has caused a lot of trouble and deepened the confusion that post-accident drug testing was no longer allowed.

Many employers were under the impression that they couldn’t do drug testing at all.

What the rules partially say is that post-incident drug testing cannot be used as a punishment or retaliation but should be used judiciously and as appropriate.

In other words, post-accident drug testing needs to be reasonable.

What is considered reasonable?

For example, considering things that might happen at work that fall under OSHA’s oversight, like developing carpal tunnel syndrome over the course of several years would not be a reasonable reason to conduct drug testing.

But, a situation where a load falls off a lift or crane could be considered reasonable. In this case, the entire chain of responsibility could reasonably be subjected to post-incident drug testing. From the person who assembled the load, to the person who attached the load to the lift, to the lift operator and even others involved in the incident, each could be reasonably considered for post-incident drug screening.

We should note that Department of Transportation (DOT) drug testing is very specific for every regulated agency. For this reason, organizations which fall under DOT compliance, are not subject to the qualifications of the Recording and Reporting Occupational Injuries and Illness regulations.

Also mandated or voluntary state programs, like those that allow an organization to qualify for a workers compensation discount, are not affected by OSHA 29 CFR 1904.

The big takeaways.

1. The Recording and Reporting Occupational Injuries and Illness regulations do not eliminate post-accident drug testing. It, instead, clarifies what companies should and could do after an accident or illness.
2. Blanket post-accident drug testing has been removed.
3. Companies should review and adjust their workplace drug testing policies.
4. A common-sense approach to post-accident drug testing should be taken.

July 2016 – OSHA SAYS NO TO POST-ACCIDENT DRUG TESTING

There has been a buzz in the drug testing industry regarding OSHA and potential prohibitions on post-accident drug testing. Employers and drug testing industry professionals alike have asked OSHA for further clarification of the new rulemaking which goes into effect August 10. 2016.

The Occupational Safety and Health Act (OHSA) as of August 10, 2016 will begin enforcing its new regulation requiring employers to have a “reasonable procedure” for employees to report work-related injuries and illnesses, and not to discriminate or retaliate against employees who report such injuries or illnesses.  OSHA wants to make sure employees feel safe about reporting workplace injury or illness.

OSHA has addressed post-accident drug testing in this regulation with a concern about an employer’s motivation in implementing post-accident drug testing. If OSHA determines that the intent of an employer’s post-accident policy is to deter or discourage the reporting of work-related injuries or illnesses, then OSHA is likely to issue a citation seeking to eliminate an employer’s continued use of such a policy.

Don’t panic, employers are still able to conduct post-accident drug testing, but company policies must be reviewed.  The OSHA rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.

OSHA says in the final rule that employer policies should limit post-incident testing to situations in which employee substance use is likely to have contributed to the incident, and used when the drug test can accurately identify the impairment caused by drug use.  The impairment statement from OSHA is a point of concern for both employers and the drug testing industry as there are currently no scientific methodologies to detect impairment from illegal drug use.  Perhaps a solution is to use lab based oral fluid drug testing for post-accident situations because the oral fluid testing detects very recent drug use.

Our guidance for employers is to carefully review the language and intent of provisions in drug free workplace programs.  Blanket post-accident testing policy statements should be removed.  Policies should be tightened to tie referrals for post-accident testing to situations where it appears an employee caused or contributed to the accident.

For example, it would likely not be reasonable to drug-test 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.  Such a policy is likely only to deter accident reporting.

OSHA cannot prohibit post accident drug testing, but if they determine a policy or practice restricts an employer’s obligation to ensure that employees report work-related injuries and illnesses; this is where there could be a problem with OSHA.

Post-accident drug and alcohol testing should also be combined with a full investigation of each and every workplace accident. Employers should follow the tips below:

Have a Written and Promulgated Drug-Testing Policy.

The policy should contain a statement that all employees are subject to drug testing and that a refusal to take a drug screen will result in a presumption that the test would have been positive. Furthermore, the drug policy should be signed by the employee and be universally enforced. If the policy is not enforced, the claimant can argue that no policy exists.  Post-accident testing requirements should be clearly explained.

Training & Education

Your drug free workplace program must have a training and education component. Employees and supervisors must know the policy, the consequences of violating the policy and the harmful effects of drugs/alcohol in the workplace. Supervisors must be able to make decisions for reasonable suspicion testing and must know the company policy inside and out.

Always Follow the Company Policy in Determining Post Accident Testing

If there situation aligns with the company policy for post-accident testing, arrange for the testing immediately to occur after any necessary medical attention.  Consider lab based oral fluid testing to detect recent drug use.

Take a Written Statement From an Injured Employee After an Accident.

The statement should ask specifically whether the employee had consumed any alcohol within 24 hours of the accident or any non-prescribed controlled substances, including cocaine or marijuana, within 30 days of the accident. Have the employee sign the statement.

Take Written Statements of Co-workers.

If you suspect drug use by the injured employee, ask the co-employees whether they noticed any unusual behavior. Never discuss the results of any drug tests with the injured worker’s co-employees.

Have Drug Tests Collected and Performed by a Reputable Vendor.

A medical drug test performed for treating a patient is different from an employment drug test. The employment drug test procedure must follow company policy, Federal and/State law and specifically quantifies the drug and alcohol levels. Furthermore, the testing entity should follow the Federal guidelines the collection and testing procedures.

Approve Emergency Care for an Injured Employee

The injured employee will be entitled to reasonable emergency medical care until he is stabilized or discharged.

Do Not Encourage the Use of Alcohol.

Have a written policy against using alcohol, even in work- related activities.

POST-ACCIDENT DRUG & ALCOHOL TESTING: ALIVE AND WELL – NOT ILLEGAL

Post-Accident drug and alcohol testing is alive and well and it is not illegal.  Post-accident drug and alcohol testing is an important part of a drug free workplace program and often a requirement of a drug testing program such as for DOT required drug and alcohol testing programs.

A couple of years back OSHA threatened that post-accident drug testing was going to be illegal.  Many companies stopped doing post-accident drug testing because of the OSHA threats.  Several lawsuits were filed and OSHA backed down.  OSHA did maintain that employers were limited to drug testing when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury.

Now OSHA has made it abundantly clear that there is no prohibition against post-accident drug and alcohol testing.  On October 11, 2018 OSHA issued a memorandum clarifying the agency’s position as to whether certain types of drug testing would be considered violations.  The memorandum states that OSHA believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

Employers can be comforted that OSHA now maintains that “most instances of workplace drug testing are permissible.” OSHA in its memo provided examples of permissible drug testing:

  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.

It is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted as long as all employees whose conduct could have contributed to the accident are tested.

Post-accident drug testing is an important tool to help deter drug use in the workplace.  It is also a mechanism to help employers save money with the possibility of a workers comp claim denial when the injured employee is positive on the post-accident testing.  This is called the intoxication defense and is available in most States. Always conduct post-accident drug and alcohol testing immediately following an accident but always after any necessary medical treatment.

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