Does your company have a blanket, post-accident drug testing policy? If so, your policy may be in violation of a new Occupational Safety and Health Administration Final Rule which OSHA will begin enforcing on November 1, 2016.
The new requirements set forth in 29 C.F.R. § 1904.35 are part of OSHA’s ongoing efforts to encourage “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.” Accordingly, the final rule, which went into effect on August 10, 2016, requires employers to establish reasonable procedures for employees to report work-related injuries and illnesses. The rule also specifically states that a procedure would “not be reasonable” if it would “tend to deter” or “discourage” accurate reporting.
While the rule itself does not mention employer drug testing policies, the comments to the final rule make clear that blanket, post-accident drug testing policies “tend to deter” the reporting of job-related injuries and illnesses and are therefore prohibited. The logic is that blanket drug testing after accidents could be perceived by employees as threatening or retaliatory, and employees who know they will be drug tested regardless of their role in an accident will be less likely to report the accident when it occurs.
The comments further clarify that the rule does not create a wholesale ban on drug testing in the workplace, but cautions that there should be a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” for an employer to reasonably require a drug test after an accident.
Because OSHA is set to begin enforcing this new rule on November 1, 2016, now is the time for employers who have blanket post-accident drug testing policies to revisit and potentially revise their policies to ensure they conform to OSHA’s requirements, as well as those of other state and federal laws. If you need assistance reviewing and revising your drug testing policies, contact an experienced employment law attorney to assist you.