OSHA began enforcing the new rule on November 1, 2016. Now is the time for employers who have blanket post-accident drug testing policies to revisit their policies to ensure they conform to OSHA’s new requirements. Below we have included information to answer many questions regarding the new rule. If you need assistance reviewing and revising your drug testing policies, Safety First can help you. Contact us today at 800.245.1150.
Does this mean I can’t drug test?
Although the rule itself doesn’t state that, OSHA concludes that “blanket post-injury drug testing policies deter proper reporting,” and therefore, a blanket test requirement will violate the new rule. In OSHA’s view, you can conduct post-accident testing only in “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.”
OSHA offers examples such as a bee sting or a repetitive strain injury (like carpal tunnel syndrome) to make its case for limited post-accident testing. But its reading of the new rule would go much further than these obvious cases and require supervisors to make on-the-spot judgments about whether an accident could have been caused by drug use–likely well before they have an opportunity to investigate and gather all of the information about the accident. Our crystal ball says that this will lead to a lot of Monday-morning quarterbacking based on information (video surveillance, equipment inspection, witness statements) that supervisors didn’t have access to at the time.
OSHA acknowledged an exception for drug testing that is required by state workers’ compensation laws or federal regulations (such as Department of Transportation testing). If required by law or regulation, the testing won’t be considered retaliatory.
What should you do now?
The electronic reporting requirements will take effect on January 1, 2017; the anti-retaliation provisions took effect on August 10, 2016. You should be reviewing your post-accident testing procedures. If you have blanket (automatic) testing for any accident, consider revising the policy to require testing only when there is a reasonable possibility that drug use contributed to the cause of the accident. Specific suspicion of the employee isn’t necessary. Also, if possible, consider limiting drug screens to tests that measure current impairment, not just prior use. As an alternative, if you’re concerned about drug use, you could also increase the frequency of random testing.
For more information, contact Safety First at 800.245.1150.