What are OSHA's regulations for post-accident drug testing?
In December 2016, OSHA introduced a final rule (29 CFR 1904) that revised their regulations on recording and reporting occupational injuries and illnesses. While the rule itself didn’t mention drug testing, it has implications for employers who conduct drug tests after workplace accidents.
So, what does OSHA say about post-accident drug testing?
When You Can Carry Out a Drug Test
Employers are permitted to carry out drug testing of employees after accidents occur in the workplace. But OSHA regulations also require employers to clearly inform employees that they have a right to report work-related injuries and illness without the possibility of retaliatory measures being taken. That means employers are strictly forbidden from using the threat of a drug test, the testing process, or the results of a drug test as a form of retaliation against employees who report injuries or illnesses.
In order to carry out drug testing, there must be a “reasonable possibility” that drug or alcohol use contributed to the injury or illness. This means that employers cannot request a drug test after a report of, for example, a repetitive strain injury. If an employee drove a forklift erratically and crashed it and there may be reason to suspect that he or she was impaired, a drug test may be permissible.
Employers are also not allowed to carry out blanket drug testing following an accident.
What Counts as a Reasonable Possibility?
The following criteria helps define what is “reasonable”:
- If there is a reasonable basis for the conclusion that drug use could have been a contributing factor to an illness or injury
- If all employees involved in the incident were also tested for drugs, or only the employee who reported the incident was tested
- If the employer has a “heightened interest” in potential drug contribution to the injury or illness due to the safety-sensitive nature of the work being performed
If you’re an employer, all of this means that you’ll want to do a couple of key things.
- Review your written substance abuse policy to ensure it specifically defines the circumstances in which post-accident testing will be carried out. You should also ensure that your post-accident policies do not include any retaliatory language or content that could discourage employees from reporting illnesses or injuries sustained while on the job.
- Train supervisors in accordance with OSHA’s revised rules, including things such as understanding “reasonable suspicion,” refraining from using any sort of retaliatory language, and creating a culture that encourages the reporting of workplace illnesses and injuries.
Drug testing can be embarrassing for employees. But under the right circumstances, it’s allowed post-accident and can be a critical step to getting them the help they need.
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