Do you automatically drug-test after all work-related injuries or accidents? If so, you should change your policy immediately in light of the Occupational Safety and Health Administration’s (“OSHA”) new reporting Rule, which went into effect on August 10, 2016. For more on the new reporting Rule, please see our prior blog post here.
According to the new Rule, employer procedures for reporting work-related injuries and illnesses must be “reasonable” and must not “deter or discourage” employees from reporting injuries and illnesses. OSHA has taken the position that automatic, post-accident drug-testing policies deter and discourage employee reporting and, as a result, such policies will now face increased scrutiny. To be clear, the new Rule does not ban all employee drug-testing. Instead, it merely prohibits the use of drug-testing or the threat of drug-testing “as a form of adverse action against employees who report injuries or illnesses.” Also, the Rule does not ban drug-testing that is conducted for purposes of complying with federal, state or local laws or regulations.
You are probably wondering how you can maintain a drug-testing policy for work-related injuries without deterring or discouraging employee-reporting in violation of the new Rule. Perhaps recognizing that they are asking employers to walk a fine line, the commentary states:
[D]rug 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. 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 reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.
The commentary also notes that a drug-testing policy that is merely “perceived as punitive or embarrassing to the employee is likely to deter injury reporting” and thus will violate the new Rule.
So, what should employers do in light of the new Rule’s impact on post-accident or injury employee drug-testing? Employers should review their existing policies to see whether drug-testing is currently required for all work-related accidents or injuries and, if so, revise them immediately. Policies revised in accordance with the new Rule should limit post-accident or injury drug-testing to only those accidents or injuries where there is reason to believe that drugs or alcohol may have caused or contributed to the incident. In addition, employers should consider limiting the drug test in such a way so as to only test for drug use at or near the time of the incident. Finally, Employers should also make sure their policy clearly states that retaliation for reporting workplace injuries or accidents is strictly forbidden.