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.